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AFFRAY AT BROWNSVILLE, TEX. 

AUGUST 13 AND 14, 1906 



PROCEEDINGS 



GENERAL COURT-MARTIAL 



CONVENED AT 



Headquarters Department of Texas 
San Antonio, Tex., April 15, 1907 



IN THE CASE OF 



Capt. EDGAR A. MACKLIN 

Twenty-fifth United States Infantry 



f 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1907 



AFFRAY AT BROWNSVILLE, TEX. 

AUGUST 13 AND 14. 1906 



PROCEEDINGS 



GENERAL COURT-MARTIAL 

CONVENED AT 

Headquarters Department of Texas 
San Antonio, Tex., April 15, 1907 

IN THE CASE OF 

Capt. EDGAR A. MACKLIN 

Twenty-fifth United States Infantr>' 



f 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1907 



AUG 9 1907 
D. sfO. 






^ 






o 



IISTDEX. 

Arguments: P&gc. 

Defense 240-242 

Prosecution 242-247 

Arnold, Samuel B. : 

Member of court 3 

Ash, Alexander: 

Testimony 63-65 

Associate counsel: 

Murphy, Pierce A 4 

Bailey, Wesley: 

Testimony 225-226 

Baker, David J., jr.: 

Member of court 3 

Baldwin, Murray: 

Member of court 3 

Blocksom, A. P.: 

Testimony 133-151 

Brown, Ira C. : 

Testimony 212-220,224-225 

Burbank, Edith: 

Reporter 4 

Burdett, Ray: 

Telegrams concerning 170, 205 

Cabell, De Rosey C: 

iMember of court 3 

Charge and specification against accused 4-5, 245, 247 

Counsel: 

Lyon, Samuel P 4 

Ely, Hanson E. : 

Member of court 3 

Challenged as member of court 152 

Excused as member of court 152 

Findings of the court 247, 248 

Fitch, Roger S. : 

Judge-advocate 3 

Fleming, Adrian S. : 

Member of court 3 

Gatchell, George W. : 

Member of court 3 

Gazley, Henry L. : 

Reporter 46 

Goode, George W. : 

Member of court 3 

(I) 



II 

Grier, H. S.: Page. 

Testimony 20-28,205-209 

Hairston, Charles: 

Testimony 78-91,130-133 

Harley, Samuel W. : 

Testimony 75-78 

Hatch, Everard E. : 

Member of court 3 

Hay, Donald D. : 

Testimony 210-212 

Houle, George E. : 

Member of court 3 

Howard, Joseph Henry: 

Testimony 59-63 

Hoyt, Ralph W. : 

Testimony 239-240 

Johnson, Wait C. : 

Testimony 91-95, 129-130, 171 

Judge-advocate: 

Fitch, Roger S ' 3 

Kilbourne, Lincoln F. : 

Member of court 3 

Lawrason, George C. : 

Testimony 28-31, 173-175, 197-205 

Leckie, Harry G. : 

Testimony . . 95-110 

Lyon, Samuel P. : 

Counsel 4 

Testimony 31-34, 171-173, 220-223 

Macklin, Edgar A. : 

Charge and specification against 4-5, 245, 247 

Findings of court 247, 248 

Testimony 176-197 

Madison, Charles H. : 

Testimony , 46-58, 119-120 

Matlock, Oscar J. : 

Testimony 223-224 

Members of court: 

Arnold, Samuel B 3 

Baker, David J., jr 3 

Baldwin, Murray 3 

Cabell, De Rosey C 3 

Ely, Hanson E : 3,152 

Fleming, Adrian S 3 

Gatchell, George W 3 

Goode, George W 3 

Hatch, Everard E 3 

Houle, George E 3 

Kilbourne, Lincoln F 3 

Preston, John F 3 

Roberts, Harris L 3 

Murphy, Pierce A.: 

Associate counsel 4 



Ill 

Penrose, rharles \V.: Pago. 

Testimony 5-19, 226-239 

Specification II, against 238 

Findings of court in case of 238-239 

Preston, John F. : 

Member of court 3 

Reporters : 

Bury)ank, Edith 4 

Ga/ley, Henry L 46 

Roberts, Harris L. : 

Member of court 3 

Rogers, Joseph: 

Affidavit 248 

Beyond jurisdiction of court 120-1 28 

Testimony 152-170 

Taliaferro, Spottswood W. : 

Testimony 34-45, 111-119 

Testimony : 

Ash, Alexander 63-65 

Bailey, Wesley 225-226 

Blocksom, A. P 133-151 

Brown, Ira C 212-220, 224-225 

Grier, H. S 20-28, 205-209 

Hairston, Charles 78-91, 1 30-133 

Harley, Samuel W 75-78 

Hay, Donald D 210-212 

Howard, Joseph Henry 59-63 

Hoyt, Ralph W ". 239-240 

Johnson, Wait C 91-95, 129-130, 171 

Lawrason, George C 28-31, 173-175, 197-205 

Leckie, Harry G 95-1 10 

Lyon, Samuel P 31-34, 171-173, 220-223 

Macklin, PMgar A 176-197 

Madison, Charles H 46-58, 119-120 

Matlock, Oscar J 223-224 

Penrose, Charles W 5-19, 226-239 

Rogers, Joseph 152-170 

Taliaferro, Spottswood W 34-45, 111-119 

Wheeler, Samuel ' 65-74 

Wheeler, Samuel: 

Testimony 65-74 



PROCEEDINGS OF A GENERAL COURT-MARTIAL WHICH CON- 
VENED AT HEADaUARTERS DEPARTMENT OF TEXAS, SAN 
ANTONIO, TEX., PURSUANT TO THE FOLLOWING ORDERS: 

Special Orders. ) Headquarters Department of Texas, 

No. 13. j San Anto^no^ Tex.^ January 16, 1907. 

A general court-martial is appointed to meet at these headquarters 
at 10 o'clock a. m., Friday. February 8, 1907, or as soon thereafter as 
practicable, for the trial of such persons as ma}^ properly be ordered 
before it. 

DETAIL rOR THE COl RT. 

1. Maj. Everard E. Hatch. Twenty-sixth Infantry. 

2. JNlaj. Harris L. Roberts. Twentv-sixth Infantry. 

3. Capt. Georg-e W. Goode. First Cayalry. 

4. Capt. David J. Baker, jr.. Twentv-sixth Infantry. 

5. Capt. De Rosey C. Cabell. First Cavalry. 

6. Capt. George W. Gatchell, Artillery Corps. 

7. Capt. Hanson E. Ely. Twenty-sixth Infantry. 

8. Cai)t. George E. Houle. Twenty-sixth Infantry. 

9. Capt. Lincoln F. Kilbourne. Twentv-sixth Infantry. 

10. Capt. John F. Preston. Twenty-sixth Infantry. 

11. Capt. Murray Bakhvin. Twenty-sixth Infantry. 

12. Capt. Samuel B. Arnold. Firsf Cavalry. 

13. Capt. Adrian S. Fleming. Artillery Corps. 

First Lieut. Roger S. Fitch, First Cavalry, judge-advocate. 
L^pon final a(^journment of the court. Lieutenant Fitch will return 
to his station at Fort Chirk. Tex. 

The travel directed is necessary in the military service. 
By command of Brigadier-General McCaskev. 

C. J. Crane, 
Lieutenant-C ol onel. Military Secretary. 

Headquarters Department of Texas, 

Military Secretary's Office, 
San Antonio., Tex.., Fehruary G. 1907. 
President General Court-Martial, 

Foi't Sam Houston.^ Tex. 
Sir : The department commander directs the date of assembly of 
the court convened per Special Orders, Xo. 13. current series, these 
headquarters, be postponed until after the trial now in progress be- 
fore the general court-martial convened per paragraph 2, Special 
Orders, No. 264, series 1906, these headquarters, is completed. 
Very respectfully, 

Douglas McCaskey, 
First Lieut. ^ Fourth Caralry, Aid-de-camp, 

Assistant to the Military Secretary. 

(3) 



Headquarters Department or Texas, 

San Antonio^ Tex., April 10, 1907. 
Maj. EvERARD E. Hatch, 

Twenty-sixth Infantry, President General Court-Martial, 

Fort Sam Houston, Tex. 
Sir: The department commander directs that your court-martial, 
for the trial of Capt. E. A. Macklin, Twenty-fifth Infantry, meet 
and begin the trial next Monday, the loth instant, at 10 o'clock a. m. 
Very respectfully, 

C. J. Crane, 
Lieutenant- C olonel, Adjutant-General. 

Headquarters Department or Texas, 

San Antonio, Tex., April 15, 1907. 

The court met, pursuant to the foregoing orders, at 10 o'clock a. m. 

Present: Maj. Everard E, Hatch, Twenty-sixth Infantry; Maj. 
Harris L. Eoberts, Twenty-sixth Infantry ; Maj . George W. Gatchell, 
Artillery Corps; Capt. George W. Goode, First Cavalry; Capt. 
David J. Baker, jr., Twenty-sixth Infantry; Capt. De Kosey C. 
Cabell, First Cavalry; Capt. George E. Houle, Twenty-sixth Infan- 
try ; Capt. Lincoln F. Kilbourne, Twenty-sixth Infantry ; Capt. John 
F. Preston, Twenty-sixth Infantry ; Capt. Murray Baldwin, Twenty- 
sixth Infantry ; Capt. Samuel B. Arnold, First Cavalry ; Capt. Adrian 
S. Fleming, Artillery Corps; First Lieut. Eoger S. Fitch, First Cav- 
alry, judge-advocate. 

Absent : Capt. Hanson E. Ely, Twenty-sixth Infantry. Per par. 5, 
S. O. 82, headquarters department of Texas, April 8, 1907. 

The court then proceeded to the trial of Capt. Edgar A. Macklin, 
Twenty-fifth Infantry, who. having been brought before the court, 
introduced Capt. Samuel P. Lyon, Twenty-fifth Infantry, as counsel 
and Capt. Pierce A. Murphy, First Cavalry, as associate counsel. 

Miss Edith Burbank was duly sworn as reporter. 

The order convening the court and the subsequent orders pertaining 
to same were read to the accused. The accused wa^ then informed 
that since the issuance of the order Capt. George W. Gatchell, Artil- 
lery Corps, had received his promotion to the grade of major, making 
him the third ranking member of the court instead of the sixth. 

The accused was then asked if he objected to being tried by any 
member present named in the order, to which he replied in the nega- 
tive. 

The members of the court and the judge-advocate were then duly 
sworn. 

The accused was then arraigned upon the following charge and 
specification : 

" Charge. — Neglect of duty, to the prejudice of good order and 
military discipline, in violation of the sixty-second article of war. 

'■''Specification. — In that Capt. E. A. Macklin, Twenty-fifth Infantry, 
having been regularly detailed as officer of the day and having duly 
entered upon that duty, on August 13, 1906, did neglect and fail to 
perform the duties enjoined upon an officer of the day in case of alarm, 
retiring to his quarters, from Avhich it was found impossible to arouse 
him or bring him forth during the continuance of a considerable 
amount of small-arms fire at or in the vicinity of Fort Brown, Tex., 



and tlio aliirms sounded in consequence thereof. This at Fort Brown. 
Tex., August 18-14, IDOC)." 

To Avhich the accused pleaded as foHows: 

To the specification, Not gfuilty. 

To the char<ie. Not guilty. 

Maj. Chaklks "W. Pknkose, Twenty-fifth Infantry, witness for the 
prosecution, was duly sworn and testified as follows : 

Direct examination by the Jitdge- Advocate : 

Q. Please state your name, rank, and station. — A. Charles W. 
Penrose, major. Twenty-fifth Infantry, Fort Keno, Okla. 

Q. Do you know the accused? If so, state who he is. — A. I do, 
Capt. Edgar A. Macklin, Twenty-fifth Infantry. 

Q. AMiere were you and on wdiat duty on August 13, 190G? — A. I 
was at Fort Brown, Tex., in command of that post. 

Q. IIow large Avas the garrison and how long had it been there? — 
A. The garrison consisted of three comj^anies. B, C, and D, of the 
TAventy-fifth Infantry. We arrived on the 28th day of July, about 
3 o'clock in the afternoon. 

Q. AAliat officers were on duty at Fort Brown on the 13th of 
August, 1906, and wdiat were the duties of each? — A. Captain Lyon 
was in command of his company, D, Twenty-fifth Infantry; Captain 
Macklin. in command of his company, C, Twenty-fifth Infantry; 
Lieutenant Lawrason in command of B Company, Twenty-fifth In- 
fantry, and Lieutenant Grier, battalion quartermaster and commis- 
sary. First Battalion, TAventy-fifth Infantry, and myself. 

Q. Lieutenant Grier was also acting adjutant, Avas he not? — 
A. Lieutenant Grier was acting adjutant. 

Q. Will you kindly point out on the map. Major, the house oc- 
cupied by each of the different officers in the post. — A. Building 
marked A, I occupied; 3, Captain Lyon; 5, Lieutenant Grier; 9 — I 
believe; I am jipt. sure whether Lieutenant LaAvrason or Lieutenant 
Hay, or»tlfQy both liA^ed in the same house — I think he Avas in 9 and 
Hay in 10. Cti^tain jNIacklin liA'ed in No. 11. 

Q. And the companies occupied the barracks as shown there? — 
A. As shown there, B, C, and D; this barracks Avas vacant. [Wit- 
ness indicated on map.] 

Q. You are familiar, of course, Avith the quarters and barracks 
there. Major, and I ask you if you Avill identify, by means of these 
photogi-aphs, the quarters occupied by Captain Macklin on August 
13-14, 1906 [handing Avitness ])hotograph No. 1]. — A. This w^as the 
set of quarters occupied by Captain Macklin, the east side [indi- 
cating the right-hand one of the three larger buildings shown in the 
picture — that is, the right-hand one as one faces the pictures]. The 
right hand of the i)icture, but he lived on the left side of the house. 

Q. I Avill similarly ask you Avith respect to photograph No. 2. — 
A. Yes, sir; the house in the middle of the photograph, on the east 
side, or the left side as I look at it. 

Q. Similarly with picture No. 3. — A. It is this house, the second 
one from the right of the picture, and on the farther side of it. 

(These three pictures Avere submitted in eA'idence, and arc hereto 
appended and marked, resjxK'tiAely. 1, 2, and 3.) 

Q. And do you recognize that photograph [handing Avitness pho- 
tograph] ? — A. I could not recognize that. 



Q. You conld not state what particular side A. No, sir; those 

houses are all the same. 

Q. What officer reported to you after guard mount on August 13, 
as new officer of the day ? — A. Captain Macklin. 

Q. Did you give him any special orders at that time? If so, 
what? — A. No, sir; no sjoecial orders at that time. 

Q. When did you next see him during the daj^? Do you recall? — 
A. Well, I don't recall seeing him that day until about half past 5 
in the afternoon. I might have seen him, however, several times. 

Q. Did vou at that time give him anv special instructions? — A.I 
did. 

Q. If so, please state what and why. — A. It would probably be 
best for me to put the " why " first. There was Mayor Combe and a 
Mr. Evans 

By Associate Counsel. May it please the court. I would like to 
ask the judge-advocate what is the purpose of this question. Unless 
he can explain that it is relevant to this particular charge and speci- 
fication, I will have to object, on the ground that it is immaterial. 
If he desires to ask Avitness whether he received am^ special instruc- 
tions dealing with an alarm sounded at the post of Fort Brown and 
covered by this specification, the question would be relevant, but if 
it brings in any other matters it is not relevant. 

The Judge- Advocate. May it please the court. The object of 
this question is merely to connect in a logical manner the events of 
that day. It is stated in the specification that Captain Macklin was 
duly detailed as officer of the day, and mounted giiard as such on 
August 13, and it seems to me that it is relevant to inquire as to any 
special instructions he got during that tour of duty, not with the 
idea of trying to show any feeling between the toAvnspeople and the 
soldiers or anything of that kind — that has been cut out of the 
charges — but merely to show what the circumstances were that night 
and what orders he received as officer of the day. If the accused 
later on takes the stand in his oAvn behalf, his movements on that night 
will doubtless be freely touched upon by him. and in order that the 
court may understand the sequence of events there it seems to me that 
this question is proper. It rests with the court, however, to determine 
its relevancy or materiality. 

By Associate Counsel. May it please the court. I must object to 
that question, as I am not satisfied with the explanation made by the 
judge-advocate to show its materiality. I don't think the question 
is a specific one and I object largely on that ground. If the judge- 
advocate will ask the witness whether or not he issued anv instruc- 
tions to him which required any special vigilance on his part in con- 
nection with an alarm which was to be sounded at the post that 
night, we have no objection. If the judge-advocate is going to intro- 
duce a line of questions to bring out facts which would necessitate 
a special vigilance on the part of Captain Macklin, I think it Avould 
be necessarv for the defense to bring in a lot of testimony to show 
that this vigilance was not incumbent on the accused here on trial. 
And in that way the case is going to be prolonged by bringing in 
matter not relevant to the charges, and this matter has been cut out 
of these charges for that purpose and that purpose alone, simply to 
make this trial one of military neglect following upon an alarm 
sounded at the post of Fort Brown. If any other matters are 



broup;ht in by the j)rosoc'iiti()ii. as I say, tlie defciiso will find it neces- 
sary to l)rin<>' in evidence to rehnt that. The question is not a s])ecific 
one. and I object to it on that "round. 

By the Ji niiK-AnvocATi:. I have no objection to changing the form 
of the question. I still maintain, in my opinion, in order that the 
court may get a proper idea of the sequence of events and that the 
evidence be presented in a logical form, that the first witness upon 
the stand. Major Penrose, was in connnancl at the time and is better 
fitted than anyone else to give the outline of what he kncAv at the 
time and what he saw and heard at the time. I will change that ques- 
tion to the following form : 

Q. Major Penrose, did you. at or about half past 5 on the after- 
noon of August i;^, give any special instructions to the officer of the 
day?— A. I did. 

Q. Will you please state what they were? — A. I told Captain 
Macklin, officer of the day, to send not less than three patrols into 
town to inform all men, all enlisted men in town, that they must 
return to the post by 8 o'clock that night; that all passes would be 
suspended at 8 o'clock, and that if these i)atrols found any men who 
declined to come into the post to arrest them and bring them in. I 
think I stated there, didn't I, that all passes were canceled at 8 
o'clock? 

Q. Yes, sir. What was the cause of your issuing this order? 

By Associate Counsel. I object to that question. 

Upon motion of a member of the court, the accused, his counsels, 
the witness, the reporter, and- judge-advocate then withdrew and the 
court was closed: and. on being opened, the pi-esident announced, in 
their j^resence. as follows : 

Proceed with the trial. Couusel will l)lea^^e state bis objection. 

By Associate Counsel. May it please the court. My objection 
is substantially this: I desire the questions of the judge-advocate be 
limited to those allegations that are contained in this specification 
upon which Caj^tain ^lacklin has l)een arraigned. If there are any 
other nuitters which bear either directly upon it or follow by analogy 
from the wording of this specification that could be properly brought 
before this court, we have no objection, but we do object to any line 
of questions which will attempt to establish the condition of affairs 
at P'ort BroAvn which required or necessitated on the part of Captain 
Macklin any s[)ecial vigilance as officer of the day. That charge was 
contained in the original charges, and was withdrawn for the reason 
that it was not found proper to enter into that matter again before 
a court-martial, and we l^elieve this question that has just been asked 
by the judge-advocate is going to open up a line of investigation 
which will be very extended. We do not feel it is proper for us to 
allow that evidence to be introduced by the prosecution, and certainly 
if any evidence is introduced by the prosecution that tends to show 
conditions on the night of the IHth of August, further than contained 
in the si)ecification, the defense will feel it necessary to introduce a 
large number of witnesses in rebuttal. AVe do not believe it relates 
to any allegation contained in this specification, and unless the 
judge-advocate can show it does I object to it on the ground that it is 
mnnaterial. 

By the Judge- Advocate. May it please the ctmrt. The prosecu- 



8 

tion has no intention of introducing evidence or attempting to bring 
out testimony that will of necessity lead to any prolonged discussion 
or introduction of other witnessas. I do not intend to ask any wit- 
ness anything about conditions down there existing at that time, or 
prior to that time; but inasmuch as the officer of the day was given 
certain specific orders on the evening of August 13 b}^ his com- 
manding officer, as has already been testified to, I think it is entirely 
relevant for this commanding officer to state the causes that impelled 
him to issue special orders at that time. There was only one cause; 
there is no necessity for going into conditions at all. There is merely 
one incident, and no witnesses are going to be introduced to show the 
truth of the report upon which the commanding officer's action was 
taken. It is absolutely immaterial, and no attempt is going to be 
made to show that conditions were other than usual, except for the 
one instance related, upon which the commanding officer based his 
action, and it will not necessitate, I am certain, the going into this 
matter at all by other witnesses. It is, in mj^ opinion, relevant as 
showing the basis of the commanding officer's action at that time, and 
I leave it to the court as to whether it is proper or not. 

The accused, his counsels, the witness, the reporter, and the judge- 
advocate then withdrew and the court was closed; and, on being 
opened, the president announced, in their presence, as follows: 

The objection of the counsel for the accused is not sustained and the witness 
will answer the question. 

The question was repeated to the witness. 

A. It had been reported to me by Mr. Evans that the night before, 
about 9 o'clock, his wife had been assaulted by what she was sure was 
a negro soldier, and fearing that harm would come to the men if they 
were found in town, either singly or in small groups, I issued this 
order to prevent them from having any trouble. 

Q. Did you see Captain Macklin again on the 13th of August?— 
A. Yes, sir ; I saw him about 9 or 9.30 in the evening, I think it was. 

Q. Did anything unusual happen at that time? — A. Xo, sir. He 
made a report to me, was all. 

Q. State what, if anything, unusual happened at or near midnight 
on August 13. Where were you at the time and wdiat did you 
do? — A. There was something unusual happened shortly after mid- 
night on the night of the 13th and 14th. I was wakened by firing. 
] immediately went over to the barracks and caused the companies 
to be formed. On the way over I ordered " call to arms " sounded. 
Do you want me to go into all details ? 

Q. No, sir; I will ask more specific questions. You state you 
ordered " call to arms " sounded ; was that sounded at once by the 
musician of the guard? — A. Almost at once. I rej^eated the order 
two or three times in running across the parade ground. 

Q. Did he sound " call to arms " only once, or did he sound it 
several times ? — A. He must have sounded it several times, but it was 
taken up almost immediately by all the trumpeters of the three 
companies. 

Q. They were apparently all on the parade ground or in front of 
their barracks at the time they sounded the call, or were they in 
rear? — A. No, sir — well, I could not tell whether they were on the 
porches or in front of the barracks on the parade ground. Sounded 
from the direction of the barracks. 



9 

Q. "Wliat was the nature of this firing you heard? Was it small- 
arms fire, or what kind of fire w'as it? — A. I first heard two pistol 
shots. I am satisfied they were pistol shots. After that there were 
six or seven, maybe seven or eight, shots that Avere fired very rapidly. 

Q. Those were of what nature? — A. I think they were from high- 
power guns, high-power rifles. Then there was a good deal of shoot- 
ing after that, I would not pretend to say how many shots to be 
positive about it, but probably between 100 and 150. These shots 
were, in my opinion, from high-power rifies, intermingled with 
pistol shots. 

Q. And where was this shooting with relation to the bai racks of 
B Company, at the time the shooting began? — A. The first two that 
I heard I took to be somewheres between the vacant set of barracks 
there and the guardhouse, which is marked "A" on that map, or 
farther over. [Indicating on map northerly direction from the 
northeast corner of the parade ground.] The other shots seemed to 
be there, T could not tell whether nearer C Company barracks or B 
Company barracks, but it sounded to me more in rear of B Company 
[indicating garrison road in rear of B and C Companies]. 

Q. AVhen you reached the vicinity of the l)arracks did you see the 
acting first sergeant of C Company, namely, Sergt. Samuel ^V. Har- 
ley? — -A. I didn't see him when I first reached the barracks. I first 
went to C Compan}', then went over to B Company : I returned again 
to C Compan}' and Sergeant Ilarle}^ was then in front of the company. 

Q. Did you about this tiuie give any orders to anyone to send a 
messenger for Captain Macklin? — A. I did. 

Q. To Avhom, please ?^ — A. I told Sergeant Harley to send a man 
over to Captain Macklin's quarters and tell him to report to me at 
once. 

Q. This was while the shooting Avas still going on? — A. Yes, sir. 

Q. Did you later on leave the vicinity of B and C Company bar- 
racks and go over toward the garrison gate, the main gate of the 
garrison? — A. I did. 

Q. When j'^ou were standing near the gate, did any noncommis- 
sioned staff officer of the battalion report to you?— A. Yes, sir; 
Sergeant-Major Taliaferro reported to me. He had reported, how- 
ever, before and stated he was not armed and asked permission to go 
and arm himself. I told him to do so and he reported to me while I 
was in front of the gate. 

Q. Did 3'ou about that time give any orders to any one to go and 
find Captain Macklin?— A. I did. I gave orders to Sergeant-Major 
Taliaferro. 

Q. Did he start away in obedience to your order at that time? — 
A. I think that he did ; I don't recall of seeing him go, though. 

Q. Was the firing still going on at this time or had it ceased ? — 
A. No; the firing had ceased at that time, excepting a fcAv stray 
shots that apparently were way up in the town ; I think I heard some 
after the companies were along the fence, and that was about the 
time the sergeant reported to me. 

Q. When did the sergeant-major report back again to you, after you 
had given him this order to go and find Captain Macklin? — A. Well, 
I suppose it w^as five or six minutes after, maybe, I don't know the 
exact time it was. 



10 

Q. What did he report to you with reference to A. He reported 

to me that he coidd not find Captain Macklin in his quarters. 

Q. Did he go into details at all? — A. No, sir. 

Q. State anything further? — -A. No, sir. 

Q. Did the " call to arms '' and the firing arouse the occupants of 
the barracks and bring the officers over to their companies? — A. I 
suppose that it did. 

Q. What were your orders to the company commanders after they 
reached their barracks? — A. After the companies were fairly well 
formed I called to Captain Lyon and asked him if his company was 
formed, and he replied to me that it Avas ; I told him to take position 
along the brick Avail with his right resting on the garrison gate and 
extending to the left in line of skirmishers. I gave instructions to 
Lieutenant LaAvrason, commanding B Company, to post his comj)any 
in line of skirmishers along the brick wall, his left resting on the gate, 
and told him to take more than the ordinary interval. I directed 
Lieutenant Grier to take C Company and post it similarl}^ along the 
Avail Avith his left resting on B Company's right and throw back the 
right of his line a little toAvard the guardhouse. 

Q. Will you kindly indicate on the map. Major, the positions oc- 
cupied by those three companies? — A. This is the gate that enters 
into the garrison from Elizabeth street. Captain Lyon's company 
extended along the brick Avail to the riA^er. [Indicating point op- 
posite garrison gate and running toAvard the riA^er.] His company 
was extended along this portion of the Avail, left resting on the riA^er. 
B Company Avas posted from this side of the gate, I think his right 
must haA^e been about in middle of the rear of C Company barracks. 
C Company's left rested on D Company's right and extended from 
here along this Avail and Avas refused a little toAvard the guardhouse. 

Q. HoAv did Lieutenant Grier happen to be in command of C Com- 
pany? — A. I placed him in command of C Company in the absence 
of Captain Macklin. 

Q. By the Avay, Major, how" long did this firing of high-poAver rifles 
continue, to the best of your judgment? — A. Well, I should say from 
fiA^e to seA^en minutes, it was pretty hard to tell, possibly it Avas eight 
minutes. 

Q. Did any of the officers along the Avail, Captain Lyon, Lieu- 
tenant LaAvrason, or Lieutenant Grier, state to you that night that 
he had sent any one to find Captain Macklin? If so, Avhat officer 
said so and Avhat Avas his report to you ? — -A. Yes. Lieutenant Grier 
told me he had sent — in fact, I ordered Lieutenant Grier to send a 
man for Captain Macklin, and he told me the man had returned and 
was unable to find him. 

Q. Do you knoAv Avho this man Avas, Avho Avas sent by Lieutenant 
Grier? — A. Yes; I think he told me he had sent Corporal Madison. 

Q. Did any noncommissioned officer of the guard report to you or 
did you see any noncommissioned officer of the guard during or im- 
mediately after the firing? — A. Yes: I saAv Corpl. Ray Burdett, Avho 
Avas corporal of the guard, Avhile the firing Avas going on. 

Q. He reported to you Avhere, Major? — A. It Avas betAveen B and C 
Company barracks, on that brick Avalk that Avas indicated. I think 
it Avas about midAvay betAveen those tAvo barracks. 

Q. Did he state why he had come over there ? — A. Yes ; he told me 
he had come over there in answer to the call of No. 2. 



11 

Q. Do you remember the name of the man on the No. 2 post? — 
A. Yes, sir; it was Private Howard, of D Company. 

Q. Did you give Corporal Burdett any special orders at that 
time? — A. Not when I first met him, excepting to stand where he was. 

Q. Did yon later? If so, what? — A. I did later. I sent him over 
to Ca[)tain Lyon's quarters to look after the safety of the ladies. 

Q. Did he have any members of the guard with him? — A. He had 
two members of the guard, as I recall. 

Q. Did he report to you at any time prior to your sending him to 
Captain Lyon's quarters that the sergeant of the guard had sent any 
inember of the guard to find Captain Macklin? — A. He did not. 

Q. AMien did you first see Captain Macklin after you and he had 
parted company about 1) o'clock — -I think you said on the evening of 
August 13 ? — A. I think it was about 1 o'clock, or a little later, on the 
morning of the 14th. Possibly twenty minutes after 1 — fifteen or 
twenty minutes a-fter. * 

Q. Please state the circumstances of your meeting at this time, and 
what remarks were made by you both, — A. Caj^tain Macklin came up 
to me and reported and he said : '' Major, I have been asleep, and I 
haven't heard anything of what has been going on." I was very glad 
to see him and I told him to take command of his company at once. 

Q. Had you made any other eft'orts to find Captain Macklin other 
than ordering Sergeant Harley to send a messenger and sending Ser- 
geant Taliaferro 3'ourself and directing Lieutenant Grier to send a 
man ? — A. I had not. 

Q. Had any patrols gone out into town with any orders to see if 
they could ascertain the whereabouts of Captain Macklin?— A. I 
directed D Company to go through that portion of the town that 
would be most frequented by the men to see if they could find any 
trace of Captain Macklin, or two men who were reported out on pass. 
I felt very much alarmed about Captain Macklin ; I thought he might 
have jumped over the fence at the firing and harm had come to him. 

Q. Captain Lyon was in command of this patrol? — A. Captain 
Lyon was in command of his own company — D Company — which was 
sent out. 

Q. About how long after the firing was it sent out? — A. I think it 
was maybe twenty minutes or half an hour after the firing commenced 
ihat I sent Captain Lyon out. 

Q. About what time did he return, with reference to Captain Mack- 
lin's report to you? — A. He returned soon after 1 o'clock; I judge it 
near 1 o'clock. I am not at all certain about the time, and I had 
been talking with Captain Lyon and Mayor Combe for a few mo- 
ments when Captain Macklin reported to me. 

Q. Has Captain Macklin at any time since he reported to you 
about or soon after 1 o'clock on the morning of August 14 made any 
other statements with reference to his whereabouts on that night? — 
A. You mean since August 13? 

Q. Since August 14. — A. Up to this period of time. 

Q. Up to the present time. — A. Yes, sir; has spoken to me several 
times about it. 

Q. What has he said in that connection? — A. He told me he had 
taken check roll call at 11 o'clock. He went then and inspected the 
guard. In returning he went down in rear of the company quarters 
to see if some orders that he had given relative to his company were 



12 

being carried out, and while he was there or in that vicinity he heard 
some screams down toward the gate. He immediately went over 
to the gate and found a party of children coming into the post and 
a large dog was barking at them. He drove the dog off and took the 
children halfway across the parade ground. He told me that must 
have been from half past 11 to twenty minutes of 12. He returned 
then to his quarters and threw himself down on the bed. 

Q. Did he ever state anything further to you in regard to his ac- 
tions after he returned to his house and before he went to bed ? — A. I 
don't recall that he did. 

Q. To your knowledge, was there anybody in the garrison who was 
asleep at the time the firing was going on and the bugles were sound- 
ing the " call to arms," who was not awakened by either the firing or 
the alarms, other than the officer of the day? — A. I don't know. 

Q. Do you know, hoAvever, of anyone who did not waken during 
that time, other than the officer of the day ? — A. I don't know whether 
they were all weakened at that time or not. 

Q. You do not, however, know of anyone who slept through it all, 
other than the officer of the day ? — A. No ; I do not. I recall that 
Sergeant Osborn, the post quartermaster-sergeant, told me that he 
thought it might be a drill of some kind; was awakened, simply 
went to his window and then went back to bed again. 

Q. How far were Sergeant Osborn's quarters from B Company 
barracks, however? — A. I suppose they must have been six or seven 
hundred yards. 

Q. With reference to the guard, Major Penrose, how many posts 
were there kept up at Fort Brown at this time, and where was each 
located ? — ^A. There w^ere four posts. 

Q. Would you kindly show on the map the positions of No. 1, No. 2, 
and 3? — A. No. 1, in front of the guardhouse; No. 2 extended at 
night around the barracks, keeping them on his left ; No. 3 around the 
officers' quarters, marching completely around, keeping them on his 
left; No. 4 in a position off in here around the warehouses and the 
corral [indicating point some distance off the map above the upper 
right-hand corner] . 

Q. About how far was this No. 4 post from B Company barracks? — 
A. Well, that must have been — No. 4 was quite a long post — I expect 
that from the commissary to the quartermaster warehouse must have 
been all of 300 yards, and the warehouse — well, that must have been 
three or four hundred yards from B Company barracks, possibly 
longer. I don't know the distances, have never measured them, I 
am simply guessing. 

(The court then took a recess until 11.3.5 o'clock a. m., at which 
hour the members of the court, the accused, his counsel, the reporter, 
the witness, and the judge-advocate resumed their seats.) 

Q. Major Penrose, I have here a blueprint map of the military 
reservation of Fort Brown, and I will ask you if you will kindly 
scale off, in a direct line, the distance from the garrison road in rear 
of B Company barracks to the nearest point of No. 4's beat, and also 
to the farthest point of his beat? — A. (After measuring on the 
map.) About 1,500 feet. 

Q. And how far is it to the farthest point, similarly of No. 4's 
beat, from the road? — A. (After measuring on the map.) About 
2,575 feet. 



13 

Q. INIajor IViirose, which of these posts were ke})! up l)oth (hiv and 
night?— A. No. 1, No. 2, and No. 3. 

Q. No. '4 was kept on, however, only from A. From retreat 

to reveille. 

Q. AVere there any changes in the beats of the sentries on Nos. "2 
and 3 during the night? — A. Yes; on No. -2, his beat extended in 
rear of the barracks during the daytime; on No. 3, it extended in 
rear of the officers' quarters during the daytime. 

Q. But at night? — A. They were changed at retreat to march en- 
tirel}' around the barracks and the officers' (juarters. 

Cross-examination by the Accused: 

Q. jNIajor. what time did Captain Macklin report to you as officer 
of the day? — A. I think it was about 11 o'clock. The reason I fix 
it at that time. Companies B and D had a i)ractice march that morn- 
ing, and it was not customary to have guard mounting until twenty 
minutes after the companies returned from the practice marches. 

Q. It was later than the usual time ? — A. Yes, sir. 

Q. I understood you to say that you gave to Captain Macklin, as 
officer of the day, no special orders at that time? — A. I did not, sir. 

Q. And the next time he visited you officially, as officer of the day, 
was about 5.30 p. m. that evening ? — A. I saw him : I went to find 
him myself about that hour. 

Q. And your special orders that you gave him at that time were 
limited to patrols that were to be sent out that night into the town of 
BroAvnsville? — A. That, and I told him the passes were limited to 
8 o'clock ; all men were to be in by 8 o'clock, and none allowed out of 
the post after 8 o'clock that night. 

Q. And from 5.30 that evening until 1 a. m. the next morning you 
did not see Captain Macklin? — A. Yes: I saw him. Well, from 9 to 
half past — I don't know exactly what time it was — he came to my 
quarters. 

Q. At that time, at o'clock, did you give Captain Macklin any 
special orders governing his performance of officer of the day 
duties?— A. I did not. He reported the result of patrol duty in 
town, told me all the men Avere in — he did not find any at all — 
and that he himself had been through the lower portion of the town. 
I did not give any additional instructions whatever. 

Q. Did you again see him, until 1 o'clock next morning? — A. I 
don't recall seeing him again — I might have. 

Q. So to sunnnarize that, what orders, governing the performance 
of officer of the day duty by Captain Macklin, on August 13 and 14, 
190(), were given him ? — A. They were the usual orders prescribed for 
the officer of the day in the guard manual, and the special orders given 
to each one of the four posts, which are about the same as maintained 
in any garrison. 

Q. You were connnanding officer, were you not. Major? — A. Yes, 
sir. 

Q. These special orders that you gave to Captain Macklin, about 
5.30 o'clock on August 13, were those orders you thought necessary to 
give, in consequence of a certain report made to you a little while 
earlier? — A. I did. 

Q. You took all the precautions you thought were necessary? — 
A, Yes, sir ; I did, 

1643—07 M 2 



14 

Q. Did you give Captain Macklin to understand, in any way at all. 
that anything further was required of him, as officer of the day, ex- 
cejDt the carrying out of those special orders? — A. No, sir. 

Q. AVhat is about the distance from the barracks of Fort Brown to 
the officers' quarters? — A. Oh, I should sa}^ 150 yards. 

Q. Where did you sleep in your quai'ters. Major? — A. I slept in 
the back room on the eastern side of the house, second story. 

Q. Why did you sleep in the back room; any special reason? — 
A. Yes: a great reason there: the only breeze we had at Brownsville 
at all came, generally speaking, from the south. For that reason, I 
think, every l)ody occupied the back room, to get that breeze, and the 
front rooms were almost uninhabitable, it was so warm. 

Q. About Avhat distance was the officers' quarters from the guard- 
house at Fort Brown? — A. My own was probably 150 yards, about. 

Q. And Captain Macklin's was farther or nearer? — A. Captain 
Macklin's v.as considerable farther. If I am right that my quarters 
were about 150 yards, his must have been 350, I should think. 

Q. You testified as to the location of certain shooting that took 
place that night: did you see any shooting? — A. I did not. 

Q. That is merely an opinion of vours as to its location ? — A. That 
is all. 

Q. Did it appear to be all outside of the post of Fort Brown ? — A. I 
thought it was. 

Q. You testified that a certain man was sent by Sergeant Harley, 
acting first sergeant of C Company, to waken Captain Macklin; did 
that man return and make any reports to you as to the result of his 
efforts? — A. No, sir; not to me. 

Q. You later sent kSergeant Taliaferro? — A. Yes, sir. 

Q. And ^'ergean.t Taliaferro did report ? — A. He did report that 
he could not find Captain Macklin in his house. 

Q. Did Corporal Madison make any report to you? — A. Not that 
I recall. Lieutenant Grier told me — I think he said it Avas Corporal 
Madison he had sent over to Captain Macklin's quarters, and he 
could not find him. 

Q. You testified at some length as to what took place between you 
and Corporal Burdett. Did Corporal Burdett make any report to 
you as to any efforts he, as a member of the guard, had made to waken 
Captain Macklin ? — A. He did not. 

Q. Did he make any statement to you of any efforts having been 
made by the sergeant of the guard, or any members of the guard, to 
waken Captain Macklin that night ? — A. No : I don't recall that he 
did. 

Q, Private Howard, you say, was sentinel on No. 2 ? — A. Yes, sir. 

Q. Did he make any such report to you ? — A. Relative to Captain 
Macklin ? 

Q. Relative to Captain Macklin. — A. No. sir. 

Q. Do you know who the first officer was Captain Macklin saw 
after leaving his house on the morning of August 14. early in the 
morning? — A. I do not. 

Q. Had he reported anywhere before reporting to you that 
morning ? 

By the Judge-Advocate. I don't see that the witness can state that 
of his personal knowledge ; it must be hearsay. 

By Associate Counsel. Please strike out the question. 



15 

Q. Did Captain Macklin report to you of his own volition on tiio 
morning of the 14th of August? — A. I suppose he did. 

Q. Had he reported to his company before that time if — A. I tliink 
not. 

Q. Had he reported to any officer before that time? — A. Not that 
I IvllOW of. 

By the Judge- Advocate. I don't see how the witness can tell what 
hai)pened so far as Caj^tain Macklin's actions were concerned prior 
to that time he saw him. except by hearsay evidence. 

Q. What conversation did a'^ou have with Captain ^lacklin at the 
time he reported to you at 1 o'clock? — A. Captain Macklin came up 
and saluted and said, " Major, I report. I have been sound asleep 
and haven't heard anything of what was going on." 

Q. Did you believe that to be an honest statement ( — A. I cer- 
tainly did, sir. 

Q. Was there anything in Captain Macklin's manner or condition 
to Avarrant that not having been made in good faith? — A. Not the 
slightest. I never questioned it for a moment. 

Q. What did you say to Captain Macklin, Major? — A. Well, I 
think I said. '"' M}^ God, Ed, I am glad to see you." I think that was 
my first expression, and I told him then to take command of his 
comj^any at once; that he would find it on the right of the line, and 
to relieve Lieutenant Grier. 

Q. Why were you so glad to see Captain Macklin ( — A. Because 
I was afraid that Captain Macklin. being officer of the day. having 
heard the shooting — and knowing him as well as I do — that he might 
have scaled the wall to see what was the matter, and he might have 
come to harm. 

Q. How long did Captain Macklin remain on duty as officer of the. 
day? — A. I don't think that Captain Macklin was relieved before 
11. or after, on the morning of the 14th. I don't recall the exact 
time ; I know that it was late, though. 

Q. A\Tiat changes, if any, did you make in the guard that night ? — 
A. At about 3, or a little after, in the morning I dismissed B and D 
Companies and told them that they could go to their quarters. I 
gave instructions to Captain Macklin to extend his entire company 
from about midway, a little farther toward the Rio Grande River, 
and the end of the brick wall and extending a little over toward the 
guardhouse. I established that company as a guard in addition to 
the regular guard. 

Q. Was Captain Macklin present with his company all that later 
period? — A. I think that he Avas. I saw Captain ^Macklin possibly 
at half past 3, and I saAv him again before it was really daylight. 

Q. On your direct examination you were asked your opinion as to 
whether or not any of the inhabitants of Fort Brown slept through 
this firing of the 13th of August; do you remember any testimony 
that was developed in the trial of Major Penrose where a certain 
witness testified — a resident of Fort Brown — that he was asleep 
during this period? 

By the Judge- Advocate. I think that form of question is inadmis- 
sible. In the first place, I did not ask the witness his opini(m as to 
whether anyone had slept; I asked him Avhether he knew of his own 
knowledge of anyone who slept through this firing and the sounding 
of the bugle other than the officer of the day. It was not a question 



16 

of opinion, it was a question of what came within the witness' 
Ivnowledge. 

By Associate Counsel. May it please the court. I will modify 
the question according to the objection of the judge-advocate. 

By the Judge- Advocate. I wish to state, also, that the statements 
of witnesses in the other trial, even though made under oath, are not 
admissible. They are hearsay just as much as anything else. 

By Associate Counsel. Mav it please the court. May I be in- 
formed whether or not the objection is made to the form of this 
particular question or whether the objection is to the substance? If 
the objection is to form, I will modify that question to accord to the 
objection of the judge-advocate. If it is an objection to substance^ I 
reserve the right 

(By direction of the court the question was read as recorded.) 

Q. In your direct examination you were asked if you had any 
knowledge as to whether or not any of the inhabitants of Fort Brown 
had slept through this firing. I ask you. do you remember, in the 
testimony brought out in the trial of Major Penrose, a certain wit- 
ness testified that he had slept through this firing? That witness 
was a resident of Fort Brown. — A. I don't recall anyone, excepting 
the accused. 

Q. Other than the accused? — A. I don't recall it. 

Q. Did you have occasion, on the morning of the 14th of August, 
to send out any patrol around the post? — A. I did. 

Q. ^Yho Avas in charge of that patrol. Major? — A. Corporal 
Madison. 

Q. ^Vliat were his instructions? — A. His instructions were to go 
to the lower post, the old cavalry and artillery post, in which are 
located the storehouse, and where the noncommissioned staff officers 
had quarters, to see if any harm had come to any of them and to see 
if any damage had been done down there at all. 

Q. In the performance of this duty did Corporal Madison go to 
any of the noncommissioned officers* quarters? 

By the Judge- Advocate. As to what Corporal Madison reported 
to the witness, that is perfectly admissible, but to call upon the wit- 
ness who is now upon the stand for a statement as to Avhether Cor- 
poral Madison actually did certain things beyond his sight and 
hearing is inadmissible. Corporal Madison will be called as a wit- 
ness later and will testify as to what he actually did. 

By Associate Counsel. Please modify that question to read : Did 
Corporal Madison make any report to you that, in the performance 
of this duty, he had visited the quarters of the noncommissioned 
staff at Fort Brown? 

A. He did so report, and I recall now that he stated to me — not 
at the time, but I think it was the next day — that he found some of 
the nonconnnissioned officers asleep. I do not recall, though, who 
they were. 

Q. Major, did you ever, by word or action, give Captain Macklin 
to understand that you were not thoroughly satisfied with his per- 
formance of officer of the day duty on August 13 and 14, 1906? — 
A. I never have, sir. 

Q. Are you thoroughly satisfied? — A. I am thoroughly satisfied. 

■Q. Major Penrose, where were you when you heard these shots 



17 

yon have tostilied you have heard on tlio niglit of Aufrnst 13 about 
midnight ( — A. The first shots ( 

Q. Yes. — A. I was on my bed, lying on my bed. 

Q. AVere you asleep? — A. I was not, sir. 

Q. Then the shooting did not awaken you? — A. It did not. 

Redirect examinati(m by the Judgk-Advocate : 

Q. Could you hear those shots j^lainly or not from your bed? — 
A. Very distinctly. 

Q. I omitted to ask you on the direct examination as to whether 
you met any member of the guard innnediately after you left your 
house. — A. Xot immediately after I left, but as I was going out of 
the front door — the sentinel on Xo. 3 

Q. Do you recall his name? — A. Yes; Haii'ston — Private llair- 
ston. As I was putting nn' hand on the knob of the door to open it, 
he knocked, and as I opened the door I ran into him and he says, 
' Major, they are shooting us up."' I told him to go over and tell the 
sergeant of the guard to sound call to arms. 

Q. The first of the heavy rifle firing, as I understood you to say, 
took place apparently in rear of B Company barracks, and you 
indicated on the map the garrison road in rear of those barracks; 
was that about where it appeaj'ed to you to begin? — A. Seemed to 
be right in there. 

Q. And thereafter did it remain in that same place, or did it go up 
in town ? — A. It seemed to go up in town. 

Q. Up what street or alle.v? — A. I could not tell. I thought it 
might have been that alley. 

Q. The alley that runs between Elizal^eth and Washington 
streets? — A. Yes. 

Q. And could vou form any estimate as to hoAv far up it went? — 
A. No ; I couldn't. 

Q. And what is the farthest point it reached — whether one. two, or 
three squares? — A. No, sir; I couldn't tell you. 

Q. Major. I will ask you to again kindly scale off the distance on 
this map. merely to refresh your memory, and ask you the distance 
from the garrison road in rear of B Company barracks to the non- 
commissioned officers' quarters, where, according to your recollection, 

Corporal Madison stated that some people A. There are two sets 

here. I don't remember which one the quartermaster-sergeant lived 
in either, but to the first one ]measuring on map] about 1^,350 feet. 

Q. To the nearest ? — A. To the nearest set of noncommissioned offi- 
cers' quarters, yes. 

Q. And to the farthest set, in a straight line? — A. (After meas- 
uring on map.) Three thousand five hundred and fifty feeet — just 
about. 

Q. You do not. however, know in which of the noncommissioned 
officers' quarters these people lived whom Corporal ^Madison said Avere 
not awakened ? — A. No : I do not. 

Q. Whether in the near set of quarters or the farther one ? — A. No; 
1 don't recollect that — in fact. I don't recollect what quarters any of 
the noncommissioned staff occupied. 

Q. The distance, however, from Captain Macklin's quarters to B 
Company barracks Avas about. I think you stated. 150 yards? — A. I 



18 

think a little longer than that, possibly. Well, about 150 yards; I 
think that" right. 

Q. What is the distance from B Company barracks to the garrison 
road ?— A. About 60 feet, I think. 

Q. Did the bugles that were sounding, after the " call to arms " 
was first sounded by the trumpeter at the guardhouse, make a good 
deal of noise? — A. Yes, sir; they were all sounding. They were all 
sounding the call, and, of course, it made a good deal of noise. 

Q. There were two buglers in each company, were there not? — 
A. Yes. 

Q. So if all were sounding there Avould be the bugler at the guard- 
house and the five other buglers at the companies ? — A. Five others, 
yes. 

Recross-exaniination by the Accused: 
Q. Major, Private Hairston, sentinel on No. 3, in his conversation 
with you, did he make any statement relative to Captain Macklin? — 
A. No, sir; none whatever. 

Examination by the Court: 

Q. Did the old and new officer of the day report to you on August 
14 as usual after the guard was relieved ? — -A. Yes, sir ; it was later, I 
say, that morning. 

Q. Captain Macklin was old officer of the day? — A. Yes, sir. 

Q. Did he make any official report to 3'ou at that time? — A. 
Nothing but the usual one. 

Q. He made no report in regard to the occurrences of the night 
before? — A. No; I don't think he said anything about it at that time; 
of course I had seen him on that morning and talked very freely with 
him before his company was relieved. 

Q. Prior to August 13 was it usual to hear firearms discharged 
in the city of Brownsville? — A, I don't think I ever heard them — 
heard any. I remember hearing shots some night that I think were 
fired from Matamoros. 

Q. I would like to ask the witness what the height of that brick 
wall was. — A. It varies according to the ground. At the gate, on 
either side of the gate, and, I think, on all along down to the Rio 
Grande, it was about, I think, 4 or 4^ feet high [indicating the 
section of the wall between Elizabeth and Washington streets]. The 
upper end, here, was considerably higher; I think the wall must have 
been 5 feet or 5^ feet high [indicating point near Adams street], the 
eastern end of the brick wall, and it gradually went down to about 
opposite this vacant barrack, and I think there it was about the same 
height, 4^ feet — about that ; I never measured it. 

Q. During how many minutes. Major, was the '"' call to arms " 
sounded? — A. Well, that's pretty hard to tell; I presume it was 
sounded a couple of minutes, though. 

Q. "\Miat was the interval from the first shot you heard until Cap- 
tain Macklin reported to you ? — A. Well, it must have been a little 
over an hour, I think. 

Q. Were the windows of your room open when you heard the first 
shots? — A. Yes, sir; they were all open; the whole house, sir. 

Q. The officer of the day on that night, and under the circumstances 



19 

that maintaiiUM] al the time, had certain dofinitc diitios in connection 
with his guard to porforni, iiad lie not? — A. Yes, sir. 

Q. Do you consider, as his post connnander. that he performed 
those duties? — A. He had performed his duties up to the time he 
went to sleej) to my entire satisfaction. I never thought that I could 
hold him for a moment for not waking u]i at that time. I know he 
is a hard sleeper. 

Q. I don't think you get the meaning of my question exactly. 
Under the circumstances, which were unusual of course, due to the 
facts that an alarm and "call to arms" had been sounded, the officer 
of the day, in connection with his guard, had certain duties to per- 
form which are either prescribed by the manual or In' si)ecial instruc- 
tions from you. Did he on that night perform those duties? — A. I 
think that he did. He did not retire until after the prescribed period 
for him to retire, and that he slept tlirough I don't think we can 
count against Captain Macklin. 

Q. Captain Macklin reported to you. you say. about 1 o'clock or 
shortly after: did he ever state to you how he hai)|)ened to awaken at 
that time? — A. I think he did afterwards; not at that time he re- 
ported to me. 

Q. That time refers to the wakening about 1 o'clock. AVliat caused 
him to awaken aljout that time? — A. My impression is he told me he 
heard some one knocking at the door. Yes, that was it; I am sure he 
told me he heard some one knock at the door — wait a minute, I 
think I remember that a little more clearly now. He told me he 
heard some one knock on the door and he got up and looked at his 
clock and he found that it was about 1 o'clock, and he thought that 
the man had made a mistake, intending to call him at reveille. 

Recross-examination by the Accused: 

Q. Major, you testified as to the number of musicians in the com- 
panies of your command : you do not mean to say that all .these 
musicians were sounding the alarm that night, do you? — A. I don't 
know: it sounded to me as if all might be sounding it. 

Q. AVhat's the usual wav in which an alarm is sounded ? — A. 
Sounded first from the guardhouse and then each of the company 
musicians take up the call. 

Q. Sounded at each company ? — A. At each company. 

Redirect examination by the Judge- Advocate : 
Q. It is ordinarily sounded by all of the trumpeters possessing 
trumpets, is it not? — A. By all of them. 

Recross-examination by the Accused : 
Q. But, jNIajor, it is not ordinarily sounded together: there might 
be one trumpeter sounding it at one time. You would not have a 
volume of sounds from every trumpeter of the command ? — A. That 
might have been. It sounded as if they were sounded all together. 
They did not all commence at once or keep in one key. or anything 
of that kind, but I thought they all sounded the " call to arms." 

(The court then, at 1-2. 15 o'clock p. m., adjourned to meet at 9 
o'clock a. m., April 10, 1907.) 

Roger S. Fitch, 
Fii'st Lieutenant.^ First Cavalry^ J udge-Adrocate. 



20 

Headquarters Department of Texas, 

San Antonio^ Tex.^ April 16, 1907. 
The court met, pursuant to adjournment, at 9 o'clock a. m. 
Present : All the members of the court and the judge-advocate. 
The accused, his counsels, and the reporter were also present. 

The reading of the proceedings of April 15 was dispensed with. 

Lieut. H. S. Grier, Twenty-fifth Infantry, a witness for the pros- 
ecution, was duly sworn, and testified as follows : 

Direct examination by the Judge- Ada'CCa te : 

Q. Please state your name, rank, and present ' station. — A. H. S. 
Grier, second lieutenant. Twenty-fifth Infantry, Fort Reno, Okla. 

Q. Do A'ou know the accused? If so, state who he is. — A. I do; 
Capt. E. A. Macklin, Twenty-fifth Infantry. 

Q. AVliere were jow on August 12, 13, and 14, 1906 ? — A. I was in 
Fort Brown, Tex. 

Q. Upon what duty were you during that time? — A. Post quar- 
termaster and commissar3% acting post adjutant. 

Q. Was one of your regular daily duties to detail, by order of the 
commanding officer, the officer of the day for the succeeding day? — 
A. It was. 

Q. AVho, on August 12, 1906, was thus regularly detailed as the 
officer to march on as new officer of the day on August 13 ? — A. Cap- 
tain Macklin. 

Q. Who mounted the guard on August 13? — A. I did. 

Q. What time of day was guard mount held? — -A. I would say 
between half past 10 and 11 o'clock in the morning. 

Q. And did Captain Macklin march on at that time as new officer 
of the day?— A. He did. 

Q. AAHien did you next see Captain Macklin that day? — A. I don't 
remember seeing him until evening, about 9 o'clock that evening. 

Q. Did anything unusual haj^pen on the night of August 13, at or 
near midnight ? If so, please state briefly what it was and what you 
did in consequence thereof. — A. There was. 

Q. ^Miere were you at the time? — A. There was a shooting which 
took place at or near Fort Brown, Tex., which alarmed the entire 
garrison. In response to call to arms the entire garrison was assem- 
bled, on their proper company parade grounds. 

Q. Where were you at the time you first heard this shooting? — 
A. I was asleep in my quarters. 

Q. In quarters No! A. Quarters No. 5. 

Q. AAliat did you do as soon as you heard the first shot? — A. I 
got up and got dressed as quickly as I could and got on the outside; 
later was assigned to command C Company b}^ Major Penrose. 

O. AAHien you left your house where did you go?— A. I went first 
to Captain Lyon's quarters, right next to mine. 

Q. For what purpose ? — A. To take my wife and child there — and 
from there I started across the parade ground towards C Company 
barracks. 

Q. Did you meet anyone on the way to C Company? — A. Yes; I 
met Sergeant Harley, the acting first sergeant. 

Q. AVhereabouts did you meet him? — A. I met him about 10 or 
15 yards from the southern end of the parade ground. 



21 

Q. That is about 10 or in yards horn tlic road that luiis along in 
front of the officers' quarters^ — A. Yes. 

Q. And in which direction was he going? — A. Iviiiuung towards 
the oflicers- line. 

Q. What did you say to liini. if anything, and what was his 
response? — A. I haUcd him: I could not see who it was, and in re- 
sponse to my challenge he said it was Sergeant Ilarley. I asked him 
what the trouble was over there; he said, "The men say they are 
shooting u}) the barracks.'' I said, '' If that's the case what are you 
doing over here?'" He said, " I am going to get my captain." 

Q. Who was his captain? — A. Captain Macklin. 

Q. Did you have any further conversation with him? — A. I did 
not. 

Q. In which din-ction did he apparently leave you? — A. He ap- 
parently kept on going towards Captain Macklin's house. I did not 
pay any further altenlion to him. 

Q. You continued on towards C Company barracks then ?--A. Y^es. 

Q. What happened then, when you arrived in the vicinity of the 
barracks? — A. As I crossed the parade ground I called several times 
for Major Penrose, and finally he answered my call and I found him 
at the east end of B barracks. 

Q. What was your report to him and what did he order you to 
do? — A. I reported to him, as his adjutant, and he said for me to 
take command of C Company: that Captain Macklin couldn't be 
found and he was afraid he had been done away with. 

Q. During the time you "^vere crossing the parade was there any 
sound other than that of the shooting — any bugles? — A. Not while I 
was crossing the parade. Inmiediately before that the " call to arms " 
had been sounded by every trumpeter in the post. 

Q. About hoAv long do you think this sounding of the call to 
arms was ke])t up by the trumpeters? — A. Two or three minutes, I 
might say. It was first sounded by the musician of the guard: then, 
as fast as they could get outside, the company musicians took that 
call up — all three companies. 

Q. There Avere six musicians there altogether in the post, were 
there not ? — A. Yes. 

Q. Each one had his trumpet, did he not? — A. Each one is fur- 
nished with one. 

Q. After you took command of Company C what further orders 
did you receive from the commanding officer? — A. To check up the 
men and take the company out and put it behind the wall, with the 
left of C Company resting on the right of B Company. 

Q. Did you receive any orders from him to send anyone to find 
Captain Macklin? — A. My recollection is that I did. 

Q. Under what circumstances and whom did you send? — A. As I 
remember it. Major Penrose told me to send a man over to Captain 
Macklin's house to see if he could possibly be there, and in obedience 
to this I sent Corporal Madison 

Q. Of Company C? — A. Of Company C, on that errand, but did 
not see him 

Q. Just one moment, what time was this you sent him? — A. That 
was about 12.15 or 12.20. 

Q. How long after the shooting had ceased? — A. About ten 
minutes. 



22 

Q. When did he report back to you ? — A. Reported l^ack to me 
about 1.15. 

Q. Do you know, of your own knowledge, whether he in the mean- 
time had been sent on any other mission by the commanding officer?^ 
A. Yes, I do. He was sent by the commanding officer to the quarter- 
master storehouse and corral, with a j^atrol of two men, to see whether 
or not any damage had Ijeen done by firing, to the animals. 

Q. When you saw him at about 1.15 did he make any report to you 
with reference to his finding or nonfinding of Captain Macklin ? — 
A. He did. 

Q. State Avhat he said ; state in full all he said. — A. I asked him 
where he had been all the time. He said he understood me to say 
that he was to report to Major Penrose, and that he had gone over to 
Captain Macklin's quarters, found his saber standing outside by the 
door, had gone in the house and called several times for Captain 
Macklin and was unable to get any response. I then asked him if he 
had gone upstairs to the back bedroom ; he said no. he had not. Then 
went on to say the reason he hadn't gotten back sooner was because 
the commanding officer had sent him on this other detail. 

Q. Did he state that he had not gone upstairs, or that he had not 
gone upstairs to the ])ack bedroom? — A. My recollection is that he 
stated he did not go ujistairs at all. 

Q. Was this shooting, by reason of which you were awakened, and 
which continued for some little time, considerable in amount or not? 
Please state your best approximation of the number of shots fired. — • 
A. About ()0 to 75 shots, fired from high-])ov,er rifles at the beginning. 
This was followed by the firing from mixed arms, in the town. 

Q. This firing continued for how long, approximately? — A. Con- 
tinued from five to eight minutes altogether, all kinds. 

Q. Where did it apparently begin, with reference to B Company 
barracks? — A. Seemed to me to be directly in rear of B Company 
barracks. 

Q. And at any time did this shooting from high-power rifles ap- 
pear to be at a very great distance from the post? — A. Xot par- 
ticularly so. That is, it didn't seem to me to be at any time very 
far from Fort Brown. 

Q. Within how many hundred yards would you say? — A. Within 
a couple of hundred yards. 

Q. Did you see Cai)tain Macklin on the morning of August 14? 
If so, please state the earliest moment at which you saw him. — A, I 
don't remember seeing him on that morning at all. 

Q. You did not see him about 1.15 in the morning? — A. Oh, yes; I 
did, too; I saw him about 1.15 in the morning, that early, but I 
thought you had reference to after breakfast. 

Q. Please state the circumstances. — A. Captain Macklin came 
about 1.15 or 1.20 and relieved me in command of his company. 

Q. Was it before or after your relief by Captain Macklin that 
Corporal Madison reported to you? — A. Just about the same time. 

Q. Did Captain Macklin state to you at that time any reasons for 
his absence? — A. He did not. 

Q. Did he ever make any statement to you since that time with 
reference to his absence, or discuss the matter with you ? — A. Yes. 

Q. If so, please state, to the best of your recollection, all he ever 
said on the subject. — A. He stated that, after making his inspection 



23 

at chock, he hud come home, read the headlhie.-i of the ne\vspai)er, and 
then had <ioiie to bed in the back bech'oom upstairs. That he had 
given instructions to the nnisician of the guard to waive him u[) Ixd'ore 
jfirst call for reveille; then he went to sleep, and wakened up suddenly 
as if some one was calling him; sat up on the edge of his bed, picked 
up his pipe which was on a chair next to the bed and lit it and sat 
there smoking for a few moments. The call he tliought he heard 
was not repeated, so he thought he must be mistaken, and he went 
back to sleep again. When he finally was awakened it was by some- 
body pulling him by the foot. 

Q. Did he state who this man was who pulled him by the foot?— 
A. He said he didn't know who it was. 

Q. Did he ever state anything to you regarding his feelings on that 
night — that he was very tired on account of having been out late the 
night before? — A. No; I am positive he never made any such remark 
to me as that. 

Q. Was there anyone in the officers' quarters or in the barracks, 
so far as your personal knowledge goes, other than the officer of the 
day, who was not awakened, either by the sound of the shooting or 
the sound of the bugles that night ? — A. Nobody that I know of. 

Q. AVith reference to the houses down there — I will ask yoti if you 
recognize this photograph [handing witness Exhibit 1. already in 
evidence] ? Please state to the court what that photograph repre- 
sents. — A. That's a picture of the last three sets of officers' quarters. 

Q. Numbers what?— A. Seven and 8, 9 and 10, 11 and 12. 

Q. And also? — A. Also a cottage occupied by the quartermaster 
clerk, on the west end of the officers' line. 

Q. Will you kindly mark by a cross the quarters occupied by Cap- 
tain Macklin on August 13, if they appear in that picture? Also sign 
your name. [Witness marks on the face of the picture and signs his 
name.] 

Q. Do you recognize that photograph [handing witness photo- 
graph, which was submitted in evidence, is hereto appendecl, and 
marked 4] ? — A. I recognize that to be a photograph of a set of 
quarters. 

Q. Do you know whose quarters they are? — A. I am not positive. 

Q. Is there anything about the way this scalloped boarding in front 
of the porch is knocked otf that enables you to identify it at all? — 
A. No; I don't remember that; that could be most any set down 
there. That's the general ty])e of all such quarters. 

Q. Is that a photograph of some one of the double sets of officers' 
quarters at Fort Brown? — -A. Yes. They are all alike. 

Q. You are unable to state exactly which one it is. With reference 
to the construction of the officers' qiuirters down there, are they 
strongly constructed or built of comparatively light material? — A. 
Well, they are not especially strongly built, and yet I don't think 
you could say the material is very light in them, either. 

Q. The climate of Fort Brown and Brownsville is very mild the 
year around, is it not ? — A. Yes. 

Q. And oppressively hot in summer, is it not? — A. Yes. 

Q. The houses down there are not ordinarily built with very thick 
walls, are they? — A. No. 

Q. Are these officers' quarters down there, these doul:)le sets, fixed 
in any way, so if an officer occupies an entire double set of quarters, 



24 

ready access can be had from one side of the set to the other? — 
A. Yes; it can be arranged that way — that is. on the first and second 
floors there are doors that open between houses, and unless those are 
kept locked or nailed np it is easy to pass from one side of the build- 
ing to the other. 

Q. About how far distant from the front wall of each set of offi- 
cers' quarters is the door in the partition in the first floor ? — A. About 
5 or 6 feet from the front door. 

Q. So that if that door is open, and the corresponding door 
upstairs, it practically makes one set of quarters out of the double 
set, does it not ''( — A. Yes. 

Q. Is this division wall between the quarters a very thick one or 
not ? — A. I don't believe it is ; I never measured it. 

Q. Did any one live in the quarters next to you ? — A. They did not. 

Q. Did you ever, while in any single set of quarters, hear anyone 
moving about in the other side of that set? — A. Yes. 

Q. Could you hear ordinary conversation on the other side of this 
partition wall? — A. I don't know. 

Q. If a door were open, however, on the first floor, ordinary con- 
versation on one side could be heard on the other side, could it not? — 
A. I think so. 

Q. You were post quartermaster. I believe, at that time ? — A. Yes. 

Q. To which quarters was Captain Macklin assigned? — A. No. 11. 

Q. Did he use any other quarters in addition to, No. 11? — A. He 
did, in this Avay. As I remember it, he had some property of his 
not yet unpacked stored in No. 12, which was not occupied. 

Q. Do you know that none of this was unpacked prior to August 
13? — A. I don't know absolutely; my impression is it was not. 

Q. Do you know whether, in view of the fact that Captain Mack- 
lin lived in one side of this house and had his property stored in the 
other — —A. Hold on; I didn't say that. I said part of his property 
stored in 12 ; he had some of his property in 11, too. 

Q. Whether or not, the division doors in the partition between 
11 and 12 were nailed up or locked ? — A. I don't know. 

Cross-examination by the Accused : 

Q. Lieutenant Grier, you said that when you first heard the shoot- 
ing you were asleep in quarters, as I understood you; you don't 
mean that, do you ? — A. Yes ; I was asleep in my own quarters when 
I first heard the shooting — that is, when I first woke up. 

Q. Whom did Captain Macklin relieve as officer of the day on the 
13th of August ?— A. Myself. 

Q. Did you report with him to the commanding officer, as old and 
new officer of the day ? — A. I did. 

Q. Were any instructions issued to him at that time by the com- 
manding officer, as ncAv officer of the day? Special instructions?— 
A. No, sir; as I remember it the commanding officer said to Captain 
Macklin. " Captain, the usual instructions." 

Q. What noncommissioned officer was in charge of the formation 
of Company C when you joined it. after leaving the commanding 
officer? — A. Sergeant Harley. 

Q. What length of time did you spend with the commanding officer 
before joining "this company?— A. About half a minute; just long 
enough for me to report to him and for him to tell me what to do. 



25 

Q. You found Sergeant Harley present there with the coni]:)any, 
you say? — A. Yes, sir. 

Q. Would that interval of time have been sufficient for Sergeant 
Harley to have visited the quarters of his conmianding officer, re- 
turned to the company, and taken part in the formation? — A. Well, 
hardly, unless he had run all the way. 

Q. How do you know that the musician of the o;uard first sounded 
the alarm that night? — A. I heard the connnanding officer give the 
order to the musician of the guard to sound it. 

Q. You know nothing further than that? — A. That's all. I heard 
Major Penrose say, " Sound " call to arms ' from the guardhouse." 

Q. Do you know of your own knowledge how nuiny trumpeters 
sounded the alarm that night? — A. I do not. It would have been 
impossible to tell how many were sounding it. 

Q. Who was the senior noncommissioned officer of Company C- 
Tweuty-fifth Infantry, present for duty? — A. I think Sergeant Har- 
ley was. 

Q. When Cori)oral Madison reported back to you. after having 
made patrol under the orders of the commanding officer, and reported 
to you having visited Captain ]\Iacklin*s quarters, you stated you 
asked him if he had visited the back bedroom : what was the purpose 
of that question ?^ — A. Because I knew that was the place where 
people always slept in that particular post. 

Q. You knew that Cajitain Macklin slept in his back bedroom or- 
dinarily? — A. Not so much that, as I kncAv everybody in the post 
was accustomed to using that room for that purpose; it is the only 
one in which it is cool enough. 

Q. Just describe the windows in that l)edroom. — A. Well, in the 
first place, the room faces directly on a body of water in rear of the 
officers' line known as the lagoon, from which at night there is 
usually a good breeze. There is a window facing directly on the 
lagoon 2 or 3 inches oif the floor — this window is about 3 feet wide 
by 18 inches deep — and that is left open. In addition to that, on the 
east side of the quarters in the same room, there is a double window, 
about 3 feet oif the floor, the window extending to the ceiling. 

Q. What was the approximate size of these windows, normal or 
less? — A. About normal. 

Q. About how large were they. j\Ir. Grier? — A. About 3 feet and 
a half wide by 5 feet deep, double window. 

Q. You testified to a certain conversation you had with Captain 
Macklin relative to his awakening on the 13th of August — the morn- 
ing of the 14th of August. Will you just describe again what you 
said about his first awakening and not getting up out of his quar- 
ters? — A. As I recall it, he said he thought he heard some one calling 
him and thought perhaps it might be the man waking him for 
reveille, and that he got up and sat on the edge of his l>ed and lit his 

Q. Did he say where this man was calling him? — A. He did not. 
He listened and he didn't hear it again and he thought he must be 
mistaken. 

Q. You said in your previous testimony that the call was not re- 
peated; you mean the sunnnons of this man? — A. Yes; Avhat he 
thought he heard, was not repeated. 

Q. You stated that as far as you knew directly there was nobody 



26 

in the officers' quarters or in the barracks who was not wakened by 
that firing and the alarms of the 13th of August. AAliat do you mean 
by that statement ? — A. I mean I have never heard or never been told 
of anybody sleeping through it. That I don't know of anything to 
the contrary. 

Q. Your testimony is purely negative on that point? — A. Purely 
negatiA^e. 

0. Who occupied the quarters "No. at Fort Brown? — A. Lieu- 
tenant Hav. 

Q. Where was he on the 13th of August ?— A. He was at Fort Sill, 
Okla.. at the rifle competition. 

Q. How long had he been absent from the post? — A. Since the 
3d or -tth of the month. 

Q. Were his quarters furnished? — A. They were. 

Q. Downstairs? — A. Downstairs and upstairs both. 

Q. Who occupied quarters No. 10 at Fort Brown? — A. Lieutenant 
Lawrason. 

Q. Were his quarters furnished? — A. They were. 

Q. Downstairs? — A. Yes; and upstairs also. 

Q. Quarters No. 12 were occupied by whom? — A. Xobody. 

Q. Were they furnished? — A. Not that I know of. 

Q. What did they contain downstairs? — A. Contained for one 
thing a lot of Captain Macklin's property, still j^acked up. 

Q. And the quarters No. 11, were they furnished downstairs? — 
A. They were. 

Q. To what extent? — A. Well, Captain Macklin, as I remember, 
had a couch in the front room by the front windows, desk, table, and 
three or four chairs. 

Q. Was Captain Macklin living alone? — A. Yes. 

Q. Was this couch uncrated or still crated? — A. It was uncrated; 
but my recollection is it was still wrapped in burlap ; I may be mis- 
taken about that. 

Q. Was there any rug or carpet on the floor? — A. Yes; I believe 
there was. 

Q. Any curtain on the windows? — A. No: I think not. 

Q. Lamp inside? — A. One lamp. 

Q. What kind of a lamp? — A. Ordinary nickel lamp; with a 
white shade, if I remember correctly. 

Q. Is Captain Macklin a married man? — A. Yes, sir. 

Q. Was his wife present at Fort Brown on the 13th of August? — 
A. She was not. 

Eedirect examination by the Judge-Advocate : 
Q. By the back bedroom. jMr. Grier, you mean what room, with 
relation to the front of the house? How far from the back was it? — 
A. Well, I could show on the map over there a good deal better. 
Here is the main part of the house here, back this far; that back room, 
the one facing on the lagoon, is right here, this half. [Indicating 
the southern half of the front portion of the house.] The window 
I spoke of as being just above the floor faced this way. directly to- 
ward the lagoon. 

Q. How many rooms altogetlier — how many bedrooms altogether — 
in that main portion of the house you have just indicated, upstairs? — 
A. Jrst two. 



'11 

Q. So this hack bedroom of which you spoke was the second room 
hack from tho front of the house!' — A. Yes. 

Q. How hirge was the front he(h-oom — how deej) was it from front 
to rear? — A. About \'l feet I should say. 

Q. So that the front jjartition of this back bedroom was only 
about 12 feet from the front wall of the house? — A. Yes. 

Q. The door to this back bedroom opened towards the head of the 
stairs and toward the front of the house? — A. Well, practically the 
same way in both; that is, the door off the back bedroom into the 
stairway <>()ina' downstairs, and there's one oti' the front room openinji; 
into the same place. 

Q. So that the main (hjor into this l)ack bedroom opened towards 
the head of the front stairway i — A. No. 

Q. It is immaterial which way the door swung, but I mean it 
opened on the head of the stairway? — A. Opened on: yes. 

Q. And about how far distant innn the head of the stairs:! — 
A. Kight at it. 

Q. Are the doors and windows at Fort lirown in the summer time 
ordinarily kept oi)en (hi)"in<j^ the hot weather of summer? — A. No. 

Q. Of occupied (juarters and barracks. I said. — A. Yes: they are. 

Q. The heat was very intense there at that time, was it not. in 
August. li)00?— A. Yes." 

Q. IIow long had Captain Macklin been in quarters No. 11? — 
\. Ever since the battalion took station at Fort Browli, about the 
29th of July. 

Eecross examination by the Accusko: 

Q. Lieutenant Grier, is there a bathroom and toilet room between 
these two bedrooms upstairs? — A. Yes, sir: over to one side; in 
most houses it Avas originally a part of the front room partitioned off 
for that pur})Ose. with a door opening into the back bedroom on the 
other side. 

Q. I wish you would try to recall again how that room downstairs 
was furnished, if you can, in Xo. 11. CajJtain Macklin's quarters — front 
room downstairs. — A. Well, it had that couch in it. I remember, and 
a desk, and a lamp and chairs. 

Q. AVhat kind of chairs were they i — A. They were white chairs — 
Government chairs, or chairs that looked like Government chairs — 
painted white. 

Q. How about the floor? — A. My impression is there was a rug; 
I am not sure. I am sure there were no curtains up. 

Q. You wouldn't say there was a rug there? — A. I wouldn't be 
absolutely positive. My impression is. there was. 

By the Judge- Advocate. I am through with the witness for the 
l)resent, sir; I may have to recall him later. I wish to nuike that 
reservation. 

Examination l)y the Court: 

Q. Was there any wind on the night of August 13, 190(5, about 
11.30 o'clock? If so. about how strong was it. and from what direc- 
tion was it blowing? — A. I don't know : I was asleep then. 

Q. Did you or did you not testify that Sergeant Harley reported 
to you with Company C too soon for him to have gone to the quarters 
of Captain Macklin ? — A. I believe I stated that he would have had to 
run all the way to have gotten back there by the time he did. 



28 

Q. Was there any wind on the night of August 13, 1906, at the 
time you were awakened by the shooting? If so, about how strong 
was it and from what direction was it blowing? — A. I don't remem- 
ber any wind, but the prevailing wind in that locality was from the 
south every night during the summer months. The prevailing wind 
was from the south — this was towards the post. That always gave 
a cool breeze in the back rooms of the houses at night. 

Redirect examination by the Judge- Advocate : 
Q. There was no wind, however, on the night in question? — 
A. None especially that I noticed. 

Upon motion of a member, the accused, his counsels, the reporter, 
and the judge-advocate then withdrew and the court was closed, and 
on being opened the ])resident announced, in their presence, as fol- 
lows : 

Mr. Judge-Advocate, proceed with the next witness. 

Lieut. G. C. Lawrason, Twenty-fifth Infantry, a witness for the 
prosecution, was duly sworn and testified as follows: 

Direct examination by the Judge- Advocate: 

Q. Please state your name, rank, and station, Mr. Lawrason.— 
A. George C. Lawrason, second lieutenant, Twenty-fifth Infantry. 
My station is Fort Reno, Okla. 

Q. Do you know the accused? If so, state who he is. — A. Capt. 
Edgar A.']\Iacklin, Twenty-fifth Infantry. 

Q. Where were you on .the days of August 13 and 14, 1906? — 
A. I was at Fort Brown, Tex. 

Q. Were you stationed there? — A. Yes, sir; that was my station, 

Q. What was the number of the quarters occupied by you? — A. 
No. 10. 

Q. Are the houses down there strongly constructed, or are they 
constructed as houses ordinarily are in such a hot country? — A. They 
are frame buildings, with plastered walls between rooms, as I recall 
it, sir. 

Q. With reference to tlie partition wall l^etAveen the double sets of 
quarters, did that differ in any respect, according to your recollection, 
from the ordinary division wall between rooms in the same side of 
the house? — A. No; I believe not; this was a plastered wall. 

Q. It was not a sound-proof wall of any kind, such as is used in 
modern flat 'buildings and tenement buildings? — A. No, sir. 

Q. Even thougli the doors were shut, could you still hear people 
moving around on the other side of the partition — the other half of 
the house? — A. There were no doors on the first floor in my house 
connecting the rooms in the front of the house. It is my recollection 
that you had to go as far back as the alley — the extension shown in 
rear of the quarters — before being able to go from No. 9 into No. 10. 

Q. You do not know, however, the conditions in the other houses? — 
A. No, sir; I am not sure of the condition in the other houses. 

Q. About midnight on August 13, where were you? — A. I was in 
bed. 

Q. Asleep? — A. Asleep in ni}^ quarters. 

Q. Were you wakened at all; about that time by any unusual 
sounds? — A. I Avas wakened by the sound of shots being fired. 



29 

Q. AppanMitly in wluit direction? — A. Apparently in 'die direction 
of the town of Brownsville. 

Q. That is, the i)liice from which the shots were fired was ap- 
parently in that direction? — A. It seemed to me so, sir. 

Q. Please state how much shooting- you heard before you got up. 
and Avhat you did afterwards. — A. I jumped out of bed as soon as I 
waked up and realized that shooting was going on. I then di'(ssed 
as rapidly as ])ossil)le and went downstairs aiul over to my com- 
pany parade ground. 

Q. AMiile you were crossing the parade did you hear any sounds 
other than the sounds made by the shooting — the re]:)orts of the fire- 
arms? — A. I heard "call to arms" being sounded, and repeated by 
the company trumpeters. 

Q. About how long was the " call to arms '' sounded and kept up 
by the various trumpeters? For about how long a space" of time? — 
A. I can only guess. I imagine in the neighborhood of five minutes. 

Q. That the^e bugles were sounding? — A. Yes, sir. 

Q. About how long did this shooting keep up which wakened 
you ? — A. I recollect hearing no shots after joining my com})any. I 
believe the shooting to have kept up five or six minutes after I was 
awakened. 

Q. You are not positive, however, that it had not been going on 
prior to the time you Avere awakened — that there had not been some 
shots fired prior to that time? — A. No, sir: I think some shots 
waked me up. 

Q. AVhen you reached the vicinity of your company barracks what 
did you do? — A. I took my place in front of the company and pro- 
ceeded to assist in forming the company. 

Q. Did you then receive any orders from the commanding officer? — 
A. Yes: he ordered me to march my company out as soon as formed 
and post it along the wall, as a guard, in rear of the barracks. 

Q. "\Miat position was your company to occupy? — A. It was ex- 
tended from the gate leading into BrownsA'ille up eastward, the right 
being in rear of the west end of C Company barracks, as I recall it. 

Q. Which company held the left of the line, from the garrison gate 
towards the river? — A. D Company. 

Q. And which company was posted on your right, extending east- 
ward?^ — A. C Company was posted on my right. 

Q. What was your impression at the time you were forming this 
company ? — A. My impression was that some persons in Brownsville 
were firing into the soldiers' barracks. 

Q. That was the general impression held by all th.e officers there, 
was it not ? — A. Yes. sir. 

Q. So that this was an attitude of defense taken up along this 
wall ? — A. Yes, sir. 

Q. Were you present at any time in the early morning of August 
14, when Captain Macklin reported to the commanding officer? — A. I 
don't think I was present when he reported: I think I saw him shortly 
after he reported. I recall seeing him near the gate some time before 
my company was relieved. 

Q. You do not knoAv, however, the exact tijne at which he reported 
to the commanding officer? — A. Xo. sir; I do Jiot. 

Q. Was it the custom down there for the officers to sleep with the 
doors and windows wide open in their quarters, at this time of year, 
1643—07 M 3 



30 

in order to get the benefit of any air that might be stirring? — A. 1 
believe that it was. I slept witli the window in my room partly open. 
There was generally a pretty stiff breeze blowing from tlie southeast 
in the evening. 

Q. Is it not a fact that this breeze usually sprang up about sun- 
down and continued for a few hours and then died away until day- 
light? — A. I am not positive exactly when it used to spring up, but 
it blew steadily about sundoAvn for a couple of hours, sometimes 
longer than that. 

Q. On the night of August 13, however, was there any appreciable 
wind, according to your best recollection? — A. I believe we had the 
usual breeze in the evening. I do not recall that it was particularly 
strong when I was awakened. 

Q. But at or near midnigiit, when you were awakened by the shots, 
and during the next hour or so, have you any recollection of the wind 
blowing at that time? — A. No; I do not recollect it. 

Cross-examination by the Accused : 

Q. Is it lilvely that you would have any recollection of the wind 
blowing vvhen you got up that night, Mr. Lawrason? — A. No, sir; I 
don't believe so; I. Avas so much engaged in thinking about other 
things. 

Q. Mr. Lawrason, j^ou testified, I thinlv, that according to your 
best recollection the bugles continued to blow "call to arms" for 
about five minutes. When you first waked up were they sounding 
call to arms? — A. I did not hear ''call to arms"* while in my 
quarters. 

Q. When you formed your company was " call to arms '" still being 
sounded? — A. I think it was l^eing sounded Avhen I first reached my 
company ; I took several minutes to form the company, and I do not 
recollect exacth^ Avhen " call to arms " ceased blowing. 

Q. When you had completed the formation of your company was 
'• call to arms "' being sounded then? — A. No, sir: I do not believe it 
was: in fact, I know it wasn't. 

Q. Did you dress hurriedly when you got up ? — A. Yes^ sir. 

Q. And when you left your quarters did you hurry to your com- 
pany barracks? — A. Yes, sir. 

Q. About how long do you think it took you, from the time you got 
up until you got to your company barracks? — A. I think it was less 
than five minutes. 

Redirect examination by the Judge-x\dvocate : 

Q. Mr. Lawrason, where did you sleep in your quarters? — -A. In 
the back room upstairs. 

Q. The back room upstairs was the room generally occupied by 
the officers there stationed for sleeping quarters, was it not? — A. Yes, 
sir; it was. 

Q- Gould you, while in this room, clearly hear the sounds of the 
shots that were fired prior to the time you left the room? — A. Yes; 
I could hear them without difficulty. 

Q. This firing was of what kind? — A. Sounded to me like scat- 
tered volleys. 

Q. Of what kind of arms? — A. High-power rifles, I think. 

Q. Where did it apparently start — the high-power rifle shooting — 
with reference to B Company barracks? — A. I could only locate it 
as in the direction of the town. 



31 

Q. Did it at any time apj)ear to 3^011 to go a very great distance 
from the post — that is. more than a few hundred yards, or how 
far? — A. I coidd not say about that, sir; it did not seem so to me. 

Q. AVliat is your best judgment as to the fartliest point from the 
post tliat" was reached by the parties doing this high-power rifle 
shooting — that is, prior to the time of its cessation? — A. I have no 
idea. 

Q. Can you give us an approximation as to whether it was 200 
yards, or half a mile, or what? Merely an approximation: that's 
all we can expect. — A. Well, it was within half a mile, I should 
guess, although I have no way of telling. 

Q. At its beginning, however, can you state now whether, at the 
time you joined your company, it was approximately onl}' a few 
hundred yards away, or was it half a mile away or more? — A. I 
recall hearing no shots after I joined my company. 

Q. While you were crossing the parade ground, then?— A. While 
T was crossing the parade ground it seemed to me to be anywheres 
within oOO yards of me. 

(The court then took a recess until 10.35 o'clock a. m.. at which 
hour the members of the court, the accused, his counsel, the reporter, 
and the judge-advocate resumed their seats.) 

Capt. Samuel P. Lyox, Twenty-fifth Infantry (counsel for the 
accused), a witness for the prosecution, was duly sworn and testified 
as follows: 

Direct examination hy the Jidge- Advocate : 

Q. Please state your name, rank, and station. — A. Samuel P. 
Lyon: captain. Twenty-fifth Infantry; Fort Reno. Okla. 

Q. Do you know the accused ? If so, state who he is. — A. I do. 
Capt. Edgar A. Macklin, Twentv-fifth Infantry. 

Q. Where were you stationed on the 13th of August, 1906?— A. At 
Fort Brown, Tex. 

Q. Did you see the accused on that day? — A. I did. 

Q. Did you see him after guard mount? If so, at what time? — 
A. I saw him a number of times on that day. 

Q. What Avas the last time you saw him on that day? — A. Be- 
tween half past 9 and 10 o'clock p. m. 

Q. Under what circumstances? — A- I saw him at his quarters. 

Q. What did you do after that? — A. I went to my own quarters. 

Q. And did you retire soon afterwards or not? — A. No; I went 
to bed about twenty minutes of 12, I should say. 

Q. Did anything unusual happen at or about midnight on that 
date? If so. please state whether you were asleep or awake at the 
time and what you did immediately afterwards. — A. At or about 
midnight, or jierhajis a few minutes after, I was awakened by the 
sound of firing. I g)t up and dressed hun-iedly and went at once to 
my c;)mpany barracks. 

O. What was the nature of this firing that awakened you? — 
A. The first shots that I heard were pistol shots. That was followed 
by rifle fire. 

O. How long did this rille fire keep up. ai)proximately ? — A. Three 
or four minutes. I should say. 

Q. Was that followed by shots from revolvers and other small 
arms? — A. Yes. 



32 

Q. x\n(l that kept up approximately how long — this mixed fire? — 
A. Well, I should say that all the firing- perhaps covered a period of 
four or five minutes — the rifle fire, the mixed firing, the whole 
business. 

Q. Where, according to your best judgment formed at the time, 
did this rifle firing begin ?— A. The rifle firing that I heard came 
apparently from the direction of Brownsville, about o])posite the 
line of barracks, the center of the line of barracks. 

Q. That would be opposite B and C Companies? — A. Yes; about 
in thei'e someAvhere. 

Q. And distant from the garrison or close to the reservation 
line? — A. I should say it was close to the reservation line. 

Q. Did the people doing the shooting apparently remain there, or 
did they gradually move away from or towards the post? — A, I 
didn't notice any particular change in the location of the shooting, 
except that towards the end there was more shooting out farther in 
town. 

Q. But the shooting from the rifles was apparently confined to 
a distance of not over how much from the post? How great a dis- 
tance was the farthest rifle shot fired, apparently i — A. Well, I 
wouldn't want to be at all definite in that. I should say the farthest 
shots were not more than 300 or 400 yards; it might not have been 
so far; that's simply an approximation. 

Q. There was a good deal of rifle firing nearer the post than 'that, 
in your best judgment, was there not { — A. It sounded to me so. 

Q. AVhen you left your house and started for the company bar- 
racks, did you hear any loud sounds other than the reports of the 
rifles? — A. I heard Major Penrose calling to the guard to have "call 
to arms '' sounded, and I heard the trumpeters sounding " call to 
arms.'' 

Q. Did it sound to you as if all the trumpeters were sounding the 
''call to arms" about the same time, or not? — A. No; they started — 
I think perhaps the trumpeters nearer the guardhouse — seemed to 
me it started from C Company and went on up. There might have 
been two or three or four sounding the call simultaneously, but it was 
taken up, as I recall it, somewhat in succession. 

Q. And these bugle calls kept up all together, from the time the 
first call w^as sounded in the guardhouse until the last note of the last 
trumpet had ceased, approxin.iately how long? — A*. About three 
minutes, I should say. I should think that would cover it. 

Q. You were occupying what quarters at this time ? — A. No. 3. 

Q. Allien you reached the vicinity of your company barracks, Avhat 
did you do? — A. I went in my company barracks to hurry the men 
out, and then I formed the company on the company jDarade ground. 

Q. Then did you make a report to anyone? If so, wdiat? — 
A. Major Penrose asked me if my company was formed and every- 
body out, and I reported to him that the company was formed. 

Q. What ins-tructions did he then give you? — A. He directed me 
to place my company along the garrison wall, with the right at the 
gate and the left extending down towards the Rio Grande. 

Q. How long did your company remain in this position? — A. I 
should say twenty or thirty minutes. 

Q. At the conclusion of this period of time did you receive any 
orders from the commanding officer? — A. I did. 



33 

Q. AVhat were they? — A. He directed me to form my company 
and patrol a certain part of the town of BrownsviUe. 

Q. Did he, in giving you these instructions, make any mention of 
the ofllcer of the day. or ask you to try to ascertain his whereabouts? — 
A. Yes; lie told me especially to see if I could find Captain Macklin, 
who was the officer of the day. 

Q. You then took your company and started on this i)atrol. did 
you? — A. I did. 

Q. How long were you absent on this patrol? — A. Perhaps half 
an hour. 

Q. Did you ascertain anything of the whereabouts of Captain 
Macklin on this patrol? — A. I did not. 

Q. lTi)on your return with your company what did you do? — 
A. After I reported my return to Major Penrose, whom I met near 
the main gate of the garrison, he directed me to have my men fall 
out, but to remain right there, and for me to stay there also. 

Q. At or about 1.15 a. m., did any officer rei)()rt to the command- 
ing officer — any officer who had not made an appearance before on 
that evening? — A. I didn't see him report. 

Q. To whom have you reference? — A. This officer. 

Q. When did you first see Captain Macklin on the morning of the 
14th of August, and under what circumstances? — A. After my men 
were pehmitted to fall out they sat about on the grass betwee B and 
D Conii^any barracks, along that walk that's indicated on the map 
leading in from the main gate, and I saw' Captain Macklin some time 
between 1 o'clock and a quarter past 1 — that is, that's the best of nw 
recollection ; I am sure it was not after quarter past 1 — as he was 
coming across the parade ground: I met him then just in front of 
the line of barracks. 

Q. What did he say to you or you say to him ? Please state the con- 
versation. — A. I can't recall the exact conversation, of course, but 
the gist of it was, I asked him where he had been, and he said he had 
been asleep, he hadn't waked up, and I told him he had better go and 
report at once to Major Penrose, the commanding officer, and he left. 

Q. He then left you and started in the direction of Major Pen- 
rose? — A. Yes. 

Q. Was this the first time you saw Captain IMacklin between the 
time vou parted company with him, between 1).3() and 10 o'clock on 
August 13?— A. Yes. 

Q. I want to ask you a question or two. Captain Lyon, with refer- 
ence to your quarters there. Did you sleep upstairs in your quar- 
ters? — A. Yes. 

Q. In the front or back room — the first or second bedroom ( — A. In 
the back bedroom. 

Q. That was the room used ordinarily there as sleeping quarters — 
that is, corresponding rooms in other quarters? — A. I understand so. 

Q. Were the windows in this room open? — A. In my room? 

Q. In your bedroom? — A. Yes. 

Q. Could you hear the shooting plainly from there? — A. I could. 

Q. Is the distance from your quarters, Xo. 3, to B Company bar- 
racks api)roximately the same as the distance from quarters No. IJ 
to B Company barracks? — A. I should say just about the same. 



34 

Q. Do you recollect that there was any strong wind that night? — 
A. I don't recollect any strong wind. 

Q. Do you recall any wnnd at all at or about midnight, the time 
you were going to your barracks? — A. No; there was nothing un- 
usual ; nothing that impressed me at all. 

(The accused declined to cross-examine the witness.) 

Examination by the Court: 
Q. I would like to ask Captain Lyon to go to the map and point 
out the quarters and w^here he slept.— A. These are my quarters, 
No. 3, and the second story — this business in the rear is one-story 
affair [indicating southern portion of the house]. The second story 
has two bedrooms, with a bathroom in between, and my room was 
this rear bedroom. 

Cross-examination by the Accused : 

Q. Is that a full set of quarters, Captain, upstairs — ^a full story ?— 
A. No ; the ceilings are very low and sloping roof to the front, and the 
back windows are dormer windows. 

Q. Similar set of quarters to No. 11? — A. The same plan; yes. 

Sergt. Maj. S. W. Taliaferro, First Battalion, Twenty-fifth In- 
fantry, a witness for the prosecution, was duly sworn and testified as 
follows : 

Direct examination by the Judge-Advocate : 

Q. What is your name, rank, and station? — A. Spottswood W. 
Taliaferro, battalion sergeant-major. TAventy-fifth Infantry; station, 
Fort Eeno. Okla. 

Q. Do you know the accused ? If so. state who he is. — xV. Capt. 
Edgar A. Macklin, Twenty-fifth Infantry. 

Q. Were you in the United States Army in August, 1906? — 
A. Yes, sir. 

Q. In what capacity were you serving at that time? — A. Battalion 
sergeant-major. Twenty-fifth Infantry. 

Q. Of which battalion ? — A. First "Battalion, sir. 

Q. And at what station Avere you stationed ? — A. Fort Brown, Tex. 

Q. ^AHiat quarters did you occupy there at Fort Brown? — A. I 
had a room in the administration building, sir. 

Q. Kindly indicate on the majo the position of your room. — 
O. (Indicates on map.) There is a halhvay running right through 
the building, directly through the center of the building; my room 
was to this side of the hall next the barracks. The office was the 
side next the officers' line. 

Q. Your room was therefore in what section of the building? 
In the northeast section? — A. Yes, sir; I think it Avas. On this side 
of the hall. 

Q. HoAv lonff had a^ou been at Fort BroAvn? — A. Since Julv 28, 
1906. 

Q. Were you acquainted Avith the quarters occupied by the various 
officers there during the period from July 28 to August 13 ? — A. Not 
very well. 

Q. Do you knoAv or did you knoAv, on the night of August 13, the 
quarters that Avere occupied by Captain Macklin? — A. I was quite 
sure of the house, but I Avas not certain of the apartment, whether 
it was to the riefht or the left. 



35 

Q. That is. yon nro certain of tlic buildinir, bnt yon aro not sure 
■vvliothor the oast or west half of the bnihlin*^ was occupied by him? — 
A. Yes, sir. I was under the impression 1 was right, but I found 
out next morning; that I made a mistake. 

Q. Point out on the map the buiklin^ in which you believed, on the 
night of August 13, Captain ]Macklin lived, and the side of the build- 
ing also. — A. (Indicating on ma))). This building right here, the 
first building; and I was under the impression he was quartered in 
the side No. 12 of this building. I learned the next morning he 
lived in No. 11 of this building. 

Q. You learned next morning, you say, that although you were 
right as to the double set of quarters, still you were wrong as to the 
half side which Avas occupied by Captain Macklin? — A. Yes, sir. 

Q. How did you know that Captain Macklin lived in that double 
set of quarters? — A. "Well, I had seen him there on the porch fre- 
quently reading the paper, and I would be sitting on the porch in 
front of the administration building in the evening, and he would 
generally be sitting on the jjorch in front of this building, and I gen- 
erally assumed that was his quarters. 

Q. Which side did he generally sit on, the east or west side of this 
set of quarters? — A. I could not say definitely any particular side; 
he would be sitting most any place on the porch ; the porch was not 
so very long. 

Q. Were the front doors of Nos. 11 and 12 usually kept open? — 
A. I can't say ; I didn't notice that matter. 

Q. Were you present at guard mounting on the morning of the 13th 
of August ? — A. Yes, sir. 

Q. Who marched on as new officer of the day ? — A. I think Captain 
Macklin marched on as officer of the day, sir. 

Q. On the evening of August 13 what time did you go to bed? — 
A. Something between call to quarters and taps. 

Q. In 3'our own room ? — A. Yes. sir. 

Q. In the administration building? — A. Yes, sir. 

Q. Were you awakened at or about midnight by any unusual oc- 
currence ? — A. Yes, sir. 

Q. What was it? — A. Shooting: seemed to be in the vicinity of the 
post. 

Q. Where were the first shots you heard apparently fired, with 
reference to the barracks of B Company or the garrison gate? — 

A. They seemed to be probably lower down, or as low down -as C 
Company barracks; might have been lower. 

Q. The next shots you heard ; where were they with reference to 
the garrison gate? — A. Seemed to be a little nearer to me, up nearer 
B Company barracks. 

Q. These shots were pistol shots or rifle shots? — A. I couldn't tell, 
sir. 

Q. Did you hear a considerable amount of firing that night? — A. I 
did, sir. 

Q. About how many shots do you suppose were fired altogether? — 
A. One hundred and fifty probably, or more. 

Q. Were all these shots fired in the A'icinity of the post? — A. No, 
sir. 

Q. There were some fired from farther away ? — A. Yes, sir. 

Q. But the majority of this shooting, did that occur within a few 



36 

hundred yards of the post, according to your best judgment, or not? — 
A. The heaviest firing I heard was down in the town, some distance 
oil from me, it seemed. 

Q. The first firing you heard? — A. The first firing was in the 
vicinity of the post. 

Q. And it gradually worked away from the post, is that the idea? — - 
A. Yes, sir. 

Q. Did you jump out of bed as soon as you heard the first shots? — 
A. No, sir". 

Q. AMien did you get up ? — A. I got up when I heard quite a num- 
ber of shots. 

Q. Did you hear anything else at that time? — A. Not just at that 
tijne. 

Q. Did you hear any bugles sound soon afterwards? — A. I heard 
the bugles sound after I got up, while I was dressing. 

Q. Did they make considerable noise or not ? — A. Yes, sir ; sufficient 
noise to alarm the garrison : '* call to arms." 

Q. What did you then do after you had dressed? — A. I w^ent in 
the office and put on my belt and ran down to Major Penrose's 
quarters. 

Q. What was your impression at the time? — A. My impression at 
the time was that the post was being fired into by a mob. 

Q. Indicate on the map the route you took from the administra- 
tion building to Major Penrose's quarters. — A. I went down in rear 
of the officers' quarters, around down to this point here [indicating 
to the front of quarters marked "A"]. 

Q. Did you make any effort to find whether Major Penrose was 
there? — A. Yes, sir. 

Q. With what result ? — A. He wasn't there. 

Q. Then where did you go? — A. I went over, follow'ing this moat 
around. 

Q. Why did you follow this moat around? — A. Because I wanted 
to keep something between me and the line of fire. 

Q. You followed the moat around where? — A. Around this direc- 
tion, right along down this Avay [indicating eastern direction from 
Major Penrose's quarters]. 

Q. Then where did you go? — A. To the guardhouse [indicating 
northerly direction] . 

Q. Was there any shelter there ? A. Shelter? No; only the guard- 
house. 

Q. When you reached the guardhouse did you make any inquiries 
as to Major Penrose's whereabouts ?— A. I did, sir. 

Q. With what results? — A. The sergeant of the guard says he 
didn't know where he was. 

Q. A'VHio was the sergeant of the guard? — A. Sergeant Reid. 

Q. Did you also see the corporal whose relief was on post at that 
time? — A. I saw Corporal Wheeler; I don't know whether his relief 
was on post at that time or not. 

Q. What was the disposition of the guard at that time? — A. The 
few men that I saw at the guardhouse seemed to be in line of skirm- 
ishers, lying prone in front of the guardhouse. 

Q. Did they appear to be excited? — A. I couldn't see very well 
their faces, it was dark; I only saw, really couldn't say that I saw 



6i 

but two privates, and I could just seo the shape of tlie men in line of 
skirniishei's lyiufi' prone in front of the uuiardhouse. 

Q. AVith reference. Ser<rennt Taliaferro, to the moat of which you 
spoke a little while aao; will you deseril)c a little more in detail this 
moat, and where it ran ^ — A. It is a ditch, seemed ahout '1\ or ?> feet 
deep and about 3 feet wide, and it has mar.^h and water in the bed of 
it, some places more or less water, mud, marsh. I call it a moat — 
probably that might not be the proper term for it — but I simply 
designated it as moat because the old moats were made on that plan. 

Q. This ran from the vicinity of ^Nlajor- Penrose's quarters in a 
general easterly direction, did it? — A. It runs down in prolongation 
of the line 

Q. Line of officers' quarters? — A. There is several branches to it; 
it branches otf and goes down to the lagoon, and there is another one 
right by the guardhouse. 

Q. So you had fairly good cover on the way to the guardhouse:! — 
A. Yes, sir. In fact, I was not going directly to the guardhouse. I 
was looking for Major Penrose, I thought maybe he had the battalion 
out and deployed. After I could not find him in his quarters I 
didn't know what to think, and after I got down that far I just 
wandered over to the guardhouse. 

Q. When the sergeant of the guard, or Cor])oral Wheeler, told 
you jNIajor Penrose was not there, where did you then go? — A. I 
went up to the barracks, up the parade ground to the l)arracks. 

Q. Straight from the guardhouse to the barracks :" — A. Yes, sir. 

Q. What happened at this time, if anything? — A. When I got 
opposite C Conij)any barraclcs I met Lieutenant Grier and asked him 
for Major Penrose. He told me I would find him to the right : I 
went to the right a few yards and found him. 

Q. Then what happened? — A. I reported to the major and told 
him I was without arms and wanted to get some arms: he told me to 
go into the barracks and arm myself. 

Q. You then went where? — A. I went into C Company barracks 
and got a rifle and some ammunition and came out and reported to 
the major again, near the gate. 

Q. At the time you first met Major Penrose were the companies 
forming in front of their respective barracks, or had they left to take 
uj) position along the wall? — A. They were forming in front of their 
resi)ective barracks. 

Q. During the time you were making this trip from the adminis- 
tration building around in rear of the officers' quarters and to the 
guardhouse and then back to the barracks, was the shooting going on 
all the time, or not? — A. The shooting was still going on when I 
reported to the INIajor. 

Q. Was it all rifle shooting, or had the nature of it changed in that 
time? — A. I couldn't tell exactly whether it was rifle shooting or not, 
but the shooting had moved down into the town when I got to the 
major and of course the sound was dilferent — I couldn't tell whether 
the same kinds I had heard or whether the distance made the difl'er- 
ence in the sound. They didn't sound the same, of course, naturally 
would not sound the same, being a distance from me. 

Q. After you had secured your arms and again reported to Major 
Penrose, he was, I understood you to say, at that time near the 
gate ? — Yes, sir. 



38 

Q. Did he give you any instructions or send 3'ou on anj^ special 
mission ? — A. Yes, sir. 

Q. What ? — A. He tokl me to go over and tell Captain Macklin to 
report to him. 

Q. What did yon then do ? — A. I went to the building I have just 
indicated on the map. 

Q. What number is it on the map? — A. I went to No. 12, and I 
called Ca^Dtain Macklin and knocked on the door; no one answered. 

I opened the door, went in the room downstairs, the front room down- 
stairs, looked around, saw no one — I went out of that room 

Q. Did you call in there? — A. Yes, sir; and I went and called in 
the hall way also. Then I went upstairs and called upstairs; no one 
answered. Then I came downstairs, and I thought Captain Macklin 
might be in No. 11, so I knocked on No. 11 and no one answered. 

Q. Did you call while outside there? — A. After knocking and no 
one answered, I opened the door and called in the hall way. 

Q. Did you call in an ordinary conversational tone or did you raise 
your voice? — A. I called in a loud tone of voice. 

Q. As loud as you could or not? — A. Yes, sir. 

Q. Did you go upstairs in this side of the house, No. 11? — A. I did 
not go upstairs in No. 11. I did not enter any of the rooms in No. 

II at all, because I was under the impression Captain Macklin was 
quartered in No. 12 and I did not know who was in No. 11 and did 
not think it proper for me to go through the house. 

Q. You did, however, go upstairs? — A. In No. 12? 

Q. In No. 12. — A. Yes, sir. 

Q. And while you were upstairs did you call out in a loud tone or 
not?^ — ^A. Yes, sir; I called upstairs and downstairs. 

Q. Did you have a revolver or rifle at this time? — A. I had a 
rifle. 

Q. Did vou use that in any way. in order to help arouse Captain 
Macklin? — A. I don't remember using the rifle in any way at all. 
I simply called. 

Q. Had you ever been in any of the officers' quarters before? — 
A. No, sir. 

Q. When you Avent upstairs in quarters No. 12 did you stop at 
the head of the steps or did you go on in in that side of the house? — 
A. I went in the room. 

Q. In Avhich room? — A. The room right at the head of the steps, 
the uj^stairs room in No. 12. 

Q. Was it what you would call the front bedroom or the back 
room? — A. Front room. 

Q. And while you Avere there you called out in a loud tone, did 
you? — A. Yes. sir. 

Q. How many times? — A. I couldn't say, sir; I called repeatedly. 
I didn't keep an}^ note of the number of times. 

Q. You were making an honest effort to arouse Captain Macklin, 
were you? — A. Yes. sir; I was. I wasn't making an honest effort to 
arouse him. because I had no idea he was there asleep. I was simply 
trying to notify him the commanding officer wanted him. 

Q. You, however, called out? — A. Yes, sir. 

Q. Did you call out his name, or did you call out in addition that 
the commanding officer desired to see him? — A. I simply called, 
" Captain Macklin,'' and I got no response, so I added nothing to it. 



39 

Q. About how many times do you suppose you called his name in 
a loud tone, on one side or the other of this j>artitiou wall between 
quarters Nos. 11 and 12? Two or three times or how many? — 
A. More than two or three times. 

Q. About how many? — A. After knocking, I called him before 
enterino;. then I entered the downstairs sitting room and called him 
there ; called in the hall way ; went upstairs and called in the hall way. 
Not finding him in No. 12 I went to No. 11 and knocked and called, 
and then opened the door and called in the hall way gain. 

Cross-examination by the Accused : 

Q. Sergeant, what kind of a night was the VM\\ of August ? — 
A. Seemed to be a dark night. 

Q. The post well lighted or not? — A. Fairly well lighted, sir. 

Q. Your first movement, after leaving your own (juarters, was to 
go in rear of the officers" quarters? — A. Ye<. sir. 

Q. Why did you do that. Sergeant? — A. To throw protection 
between me and the firing. 

Q. You located that firing; do you make that a definite location, 
Avhat you described in your direct testimony? — A. About being in 
rear of B and C Company barracks? 

Q. Yes. — A. It seemed to me to be right over there, sir. 

Q. Inside or outside the post? — A. I couldn't tell, sir; of course, 
the distance between the inside and outside of the post would be a 
distance of about 18 inches; I could not possibly locate by the sound 
the diiference in a distance of 18 inches. 

Q. Near the edge of the reservation then? — A. Yes, sir. 

Q. How were the houses down there at Fort Brown numbered, 
Sergeant ? — A. Numbered, it seems, from the guardhouse up towards 
the administration building. 

Q. I mean in what jnirticular way was each house numbered; 
where was the number of each house, on what part of the building? — 
A. I don't know, sir. 

Q. HoAv do you know, for instance, that that house on the map 
marked No. 3 is really quarters No. 3? — A. I don't knoAv that that is 
quarters No. 3. 

Q. So when you describe a particular house as No. 9 or 10 or No. 
11 or 12, you describe it with reference to this particular map? — A. I 
describe it with reference to the buildings and the location and what 
I know of Fort Brown. I don't know anything about those numbers 
on the map, only so far as they are placed there for the convenience 
of the court. 

Q. How do you know the numbers of the houses? — A. With ref- 
erence to the houses and reference to eaeli other and Avhat I know of 
Fort Brov.r.. 

Q. Assuming that the numbers A. Assuming that the num- 
bers are corre.ct. 

Q. And beginning this side of A. — A. Yes, sir. 

Q. Do you knoAv whether there was any light in quarters No. 9 or 
10 and 11 or 12? — A. There was a light upstairs in 12. 

Q. In the building?— A. Yes; and there was a dim light in 11. 

Q. I want to know about the light outside the building. AVas there 
a light outside? — A. Outside of 12? 

Q. Street light. — A. I don't remember now, sir; I couldn't say. 



40 

Q. Any outside of 9 or 10 ? — A. I don't know, sir ; I don't remem- 
ber that much about the grounds. 

Q. This quarters you describe as Xo. 12 you say was lighted 
inside ? — A. Yes, sir. 

Q. Downstairs and upstairs? — A. Yes, sir. 

Q. Was that No. 12 house furnished? — A. Yes, sir; seemed to be 
furnished. 

Q. You went through it downstairs? — A. I went in one room 
downstairs and one room upstairs. 

Q. The first room downstairs? — A. Yes, sir. 

Q. Fronting on the walk ? — A. Yes. 

Q. And what room upstairs?— A. The first one I got to — head of 
the stairs. 

Q. That's called the front bedroom? — A. Yes, sir. 

Q. You say after going in this house, No. 12, you went over and 
knocked at No. 11; you opened the door in that house? — A. Yes, sir. 

Q. You remember seeing anything of the hall or room in that 
house — No. 11? — A. No, sir; it was dark. I could just see a little 
dim light in the sitting room. 

Q. Sergeant, did you notice anything outside on the porch? — 
A. No, sir. 

Q. Did you see a saber or sword ? — A. No, sir. It might have 
been there; I couldn't say. ^_^»-'— .. 

Q. Was the door open or shut ? — A. It was shut ; I opened it w^ith 
my hand. 

Q. Not locked? — A. No, sir. 

Q. Who occupied house No. 9 down there at Fort Brown? — A. I 
don't know. 

Q. No. 10?— A. No, sir. 

Q- Do you knoAV Avho occupied No. 3? — A. No, s;ir. 

Q. Do you know w4io occupied No. 1 ? — A:''T don't know the 
houses by numbers at all — the quarters by numbers at all. 

Q. You said that wdien you went in the quarters you went to 
arouse Captain Macklin, you had no idea he was in there asleep. 
Just what do you mean by that? — A. The lieutenant asked me if 
I made an honest effort to arouse him; I told him I couldn't say I 
made an honest effort to arouse him, because I had no idea he was 
there asleep. 

Q. What was your idea? — A. My idea was if he was there he was 
awake, and if he didn't answer when I called him he wasn't there; 
that was my impression. 

Redirect examination by the Judge- Advocate : 

Q. Is there a walk of any kind that runs in front of the adminis- 
tration building from near the front of D Company barracl^ towards 
the officers' line ? — A. Yes, sir. y 

Q. There is also a driveway that runs in front of th^administra- 
tion building in the general direction just mentioned"^— A. Yes, sir. 

Q. I ask you. Sergeant Taliaferro, if you recognize this picture 
[handing witness photograph already submitted in evidence, hereto 
appended as Exhibit 2] ? — A. That seems to be a section of the offi- 
cers' line at Fort Brown, Tex. 

Q. AYhich end of the line, if it is at an end? — A. That's the end 
towards the administration building. 



41 

Q. The east or west end of the line? — A. This woiihl he tlie west 
end. 

Q. What is that small l)uildin<2: shown on the ri<iht of the ])hoto- 
^LTi'aph ? — ^A. That's a small l)uil(lin<>" occupied hv the civilian clerk in 
the quartermaster department. 

Q. Remember his name? — A. Matlock. 

Q. The next building shown, the one shown in the center of the 
photoo-raph. is what? — A. That is the buildino: I supposed Captain 
Macklin li\ed in. 

Q. And in which half of the buildino- did you sup])ose Captain 
Macklin lived? — A. I was under the impression he lived in this half. 

Q. Towards your rijrht or left as you face the picture? — A. To- 
wards my ri<>-ht as I face the picture; the buildinc: towards Mr. 
Matlock's. 

Q. So that your imi)ression on the ni^ht in (|uestion was that 
Captain Macklin lived in the buildin^f shown in the center of that 
picture and in the half of that building towards the riijht — towards 
the small house shown there? — A. Yes, sir. 

Q. "Was it to that particular buildino; and to that rio;ht-hand half 
of that buildino; that you went that night, or was it toward the right- 
hand half of the next l)uilding shown in the picture on the left? — 
A. It was to the right-hand half of this building, the (me in the center, 
the first one on the line. 

Q. Are you sure that is the building you went to that lught ? — 
A. Yes. sir. 

Q. Was it so dark that you could have made a mistake as to which 
building you went to? — A. No. sir. 

Q. Is there any possibility that you did not go to that building 
shown in the center of that photograph, but instead went to some 
other building? — A. Xo. sir: I don't think it is possible I went to 
any other building. 

Q. Will you put a cross mark over the building that you recollect 
as Captain Macklin's quarters and sign your name on the face of 
the card there. [Witness marks a cross on photograph and signs 
his name.] 

Q. Is that building below the cross mark beyond a doubt the build- 
ing you Avent to that night ? — A. It is, sir. 

Q. Indicate by a small circle the portion of the house in which you 
believed Captain ^Macklin lived. [Witness does so.] So that the 
cross, as shown in this picture. No. 2. represents the building, and the 
small circle rejDresents the half of the house in which you believed 
Captain Macklin lived and which you first entered? — A. Yes, sir. 

Recross-examination by the Accttsed: 

Q. Sergeant, where were you and ]Major Penrose standing when 
he sent you oA^er to arouse Captain Macklin? — A. Near the gate that 
leads out into Elizabeth street, sir. 

Q. Just point it out on the map, will you? — A. Standing near this 
gate [indicating point within the garrison wall and near the garrison 
gate]. 

Q. You went from that particular point to where you thought 
were the quarters No. 12. directly? — A. Yes, sir. 

O. Sergeant, did you see Captain ^lacklin on the morning of the 
Uth of Auo-ust. earlv in the morninir? — A. I did. sir. 



42 

Q. About what time? — A. I don't know exactly what time. I saw 
him when he reported to Major Penrose the first time. 

Q. Did you have any conversation with him? — A. I did not. 

Q. Did you get any ammunition from him? — A. No, sir. 

Q. How were you armed just before this time? — A. Before this 
shooting took place at Fort Brown? 

Q. I mean just before Captain Macklin reported to Major Pen- 
rose. — A. I had a rifle and 100 rounds of ammunition. 

Q. Did you keep that throughout the night? — A. I kept it until 
dismissed by the Major. 

Q. Did you later get a pistol and some ammunition? — A. Yes, sir. 

Q. From whom? — A. Quartermaster-sergeant of C Company. 

Q. Under whose direction did you get that? — A. I didn't have any 
special direction at all ; it was an understood thing. I |iad arrange- 
ments with Captain Macklin before leaving Xiobrara that I could 
use equipments and arms from his company. 

Q. You do not remember Captain Macklin giving you any ammu- 
nition that night? — A. No, sir. 

Q. Or any pistol ? — A. I do not, sir. 

Examination by the Court: 

Q. I would like to ask the Sergeant what he saw in that first room 
he went in. You say it was furnished? — A. I couldn't recall any 
particular furniture I saw, only that the room was furnished. If it 
had not been furnished, it would have attracted my attention and that 
it did not attract my attention unusually — everything seemed to be 
in ordinary condition there; it did not seem to be a vacant room. 

Q. Do you remember what kind of light there was? — A. There 
seemed to be a lamp, sir. 

Q. Was the furniture in that room packed or unpacked? — A. It 
wasn't packed up; everything was natural about the room, nothing 
unnatural about it at all. 

Q. What kind of a light v\as there in the room upstairs? — 
A. A lam]). 

Q. Furniture in that room? — A. Yes, sir; both rooms seemed to be 
furnished. 

Q. Packed or unpacked? — A. Everything seemed to be as if some 
one was living in it. 

Q. See any beds in either room? — A. I don't recall, sir, any beds 
that I saw. 

Q. Sergeant, you say that you went into the quarters you thought 
Ca])tain Macklin lived in, and that you called downstairs and then 
w^ent upstairs and called, and then came down and left that Iniilding, 
and then you went into the hall of the other side of the quarters in 
the same building; why did you do that? What was your idea ?— 
A. I thought probably he might be visiting. 

Q. But you had no idea he lived in that quarters? — A. No, sir; T 
did not ; if I had an idea I would have gone through that building 
like I did the first one. I knew Captain Macklin's family was not at 
home and that's why I took the lib&rty to go all through the house. 
I didn't know who was living in the other side, and that's the reason 
I didn't go all through the house. 



43 

Recross-exaniination by the Accused: 
Q. StTgeant, I understood you to .say you did not "o into (lie \)nrk 
bedroom of No. 12. — A. I didn't go into but one room, sir. 
' Q. Front bed i"oom upstairs ? — A. Front bedroom upstair.-^. 

Reexamination by the Couur: 

Q. I woukl like to have the Sergeant exphiin. My recollection is 
that he said he went in the front bedroom upstairs, is that so Ser- 
geant { — A. 1 went into the front room at the top of the steps. 

Q. I unilei'stand from the testimony of another witness that the 
nearest door to the head of the stairs is the back bedroom: these steps 
run from the front to the back, do they not!' — A. Xo, sir; they run 
from the back to the front. 

Recross-exaniination by the Accused: 

Q. Just describe that answer of yours to (piestion last asked you 
by a member of the court. — A. This building here. 1-2, the steps run 
from the back towards the front: you go back here and go up the 
steps, the steps rini up that way. You don't enter the steps from 
the front, you go ui) this way — you enter from the back, and go up 
this way. 

Q. And you are sure you went into that front room? — A. Yes. '<ir. 

Reexamination by the Court: 

Q. Will you describe the number of doors at the top of this flight 
of steps, after you get to the top, and the situation with respect to 
one another? — A. I could not be definite about that, but it strikes me 
there were two doors. 

Q. Close together? — A. Yes. sir. 

Q. Does not the door leading into the front room u])stairs immedi- 
ately face the stairway, and the door leading to the back room to the 
right of the stairway? — A. Captain, I really could not give any defi- 
nite information as to the arrangement of doors, etc., in the house. 

Q. In other words, if yoit were going up the stairway and wanted 
to go into the front room, wouldn't you go straight ahead — the stair- 
way leading from the rear of the qttarters towards the front? If yoti 
wanted to go into the back room, wouldn't you ttirn to the right at the 
head of the stairway ? 

By the Judge- Advocate. I don't know, may it please the court, 
that this witness ever went into these quarters aside from that night 
in question, when he Avas more or less excited, at least he states he had 
never been in them before that night, and I don't know he ever went 
into them afterwards, at least upstairs; and on the night in question, 
according to his testimony, he did not even go into the back room, 
but went into what he believes and states is the front room, and as to 
where that other do(jr led I don't see 

By Associate Coinsel. May it please the court. That, to our 
mind, is just the value of his testimony 

By the Jid(;e- Advocate. ]\Iay it please the court. This is no place, 
it seems to me. for an argument to be made by either side with respect 
to the value of a witness' testimony, as to its evidential value as to 
what has been brought out. My purpose in rising was to object to 
trying to show the arrangement of rooms in this house by this wit- 
ness, who. 1a" his own statement, is iu)t familiar with them. As to his 



44 

own actions on tliat night and to where he Avent, that is an entirely 
cliiTerent question, but I do not think it is fair to the witness to ask 
him to describe the construction of a house with the arrangement of 
which he is not familiar. I object to that question by a member, sir, 
on the grounds that the witness does not know about it. 

By Associate Counsel. May it please the court. I think I can 
state my position without objection by the judge-advocate. In using 
that word, the value of his testimony, I should say the competency of 
his testimony. This witness is testifying to certain facts that came 
within his knowledge on that particular night, and that knowdedge 
is not in any way added to by his previous or later information as to 
that set of quarters, and it is what we want, with respect to this wit- 
ness' recollection, with respect to his doings on that night, and any 
question that pertains to his doings Avith respect to that house, No. 12, 
is important as showing what he remembers about that house, and 
that remembrance is not in any way alfected by any knowledge he has 
of that building or its constru.ction. 

By the Ji dge-Adv(!Cate. May it please the court. The witness 
onlj^ entered one room upstairs, according to his testimony, the front 
room. As to where that other door went, it seems to me, inasmuch as 
he didn't open that door and never went into the house before and, as 
far I know, never went in again, that his testimony is absolutely in- 
competent on that point. 

By Meimber or the Court. I can explain why I asked that ques- 
tion, if it is desired. 

By the PREsmENT. Very well ; the member will explain. 

By Member. I have been in several of the houses at Fort Brown 
myself and I know there are two doors, one leading into the front 
room and one into the back room, at the head of the stairs, and the 
one leading into the front room is directly opposite the stairs. In 
other words, if you wanted to go into the front room you would go 
up the stairway and go straight ahead ; and I thought I could fix 
that in the sergeant's mind by asking that question. 

By the Judge- Advocate. It, however, appears from the witness' 
statement that he didn't enter but one room, and as to what was be- 
hind the closed door he didn't open I think his testimony is abso- 
lutely incompetent. 

The accused, his counsels, the reporter, the witness, and the judge- 
advocate then withdrew and the court was closed, and on being 
opened, the j^resident announced in their presence as follows : 

The objection of the .iiKlge-advocate is sustained and the witness will not 
answer the question as put. The member will ask the «iuestion in a dift'ereat 
form. 

Q. Sergeant-Major, please describe the direction you took after 
leaving the head of the stairAvay to enter the room which you went 
into. — A. It's my impression that I simply Avent to my left. I may 
not be right in that. 

By President of the Court. The court will want a fuller descrip- 
tion than that. Sergeant. Can't you describe more fully hoAV you 
went? — A. I am not familiar with the interior of the houses at all. 
I never was in it before, never been in it since ; it was a time of great 
excitement, and I simply rushed up the steps, calling Captain Mack- 



45 

lin, and rushed out. Didn't notice anything on the inside of the 
building at all : never thought for a moment that I would be called 
in question as to the interior of the house, and it is a matter of im- 
possibility for me to give any description. 

Q. You stated then you went into the front room of (juarters No. 
12, u])stairs? — A. Yes, sir. 

Q. I was trying to fix definitely how you knew it was the front 
room. — A. It was just my impression; it Avas the first room I struck 
at the head of the steps. 

Q. Sergeant, I would like you to point out on that map just the 
way you went when Major Penrose gave you the order to find Captain 
Macklin. Show us where you started and where you went. — A. 1 
was right over here, near the gate, sir. lie gave me the order here, 
and I went straight across here [indicating a straight line between 
the vicinity of the garrison gate and quarters 11 and 12]. 

Q. You did not follow the walk as shown on the map? A. No, 
sir; made a straight line. 

Redirect examination by the Judge- Advocate: 

Q. Sergeant Taliaferro, did you actually see those lights in the 
house ; that is, did you see the lamps themselves that gave the 
light in quarters No. 12? — A. I couldn't describe the lamps at all, 
but my imj^ression — it was the impression in my mind that they were 
lamps, because of the nature of the light they gave. Had they been 
lanterns the light Avould not have been as clear. 

Q.. You don't recall, however, seeing the lights themselves? — A. I 
couldn't describe the lamps at all. 

Q. AVas the house brilliantly lighted? — A. Well lighted; yes, sir. 

Q. Could you see any evidences of occupancy in quarters No. 12 
other than receiving the impression that the quarters were occupied 
by some one? — A. They were furnished, there was furniture in the 
quarters, and the reason that rests so firmly in my mind is because 
the absence of furniture would have rested on my mind, and the fact 
that there was nothing unusual about the quarters of course natu- 
rallv makes it fixed on my mind that the quarters were in ordinary 
condition ; everything was normal, there was nothing abnormal or 
strange about it at all. 

Reexamination by the Court : 

Q. Sergeant, do you state positively that there were lamps burn- 
ing in the room on the first floor and on the second floor of quarters 
No, 12 when you Avent in? Were there lamps burning in those 
rooms? — A. Those rooms Avere aacII lighted, and it was my impres- 
sion it Avas lamps, because lanterns would not haA^e giA'en such a 
brilliant light ; neither Avould candles. I could not describe the 
lamps because my attention was not attracted to them. 

Q. But positiA'ely there Avere lights? — A. Yes, sir; oh, yes, sir; 
there Avere lights, and brilliant lights. 

(The court then, at 12 o'clock m., adjourned to meet at 9 o'clock 
a. m. Wednesday morning, April 17, 1907.) 

Roger S. Fitch, 
First Lieiitenanf, First Cavalry, Judge- Advocate. 

1643—07 M 4 



46 

Headquarters Department of Texas, 

iSan Antonio, Tex.. April T7 , 1907. 
The court met pursuant to adjournment at 9 o'clock a. m. 
Present, all the members of the court and the Judge- Advocate. 
The accused, his counsels, and the rejjorter were also present. 

The reading- of the proceedings of April 16 was dispensed with. 
******* 

Henry L. Gazley was duly sworn as reporter. 

******* 

• Charles H. Madison, a witness for the prosecution, was duly 
sworn and testified as follows : 

Direct examination by the Judge- Advocate : 

Q. What is your name, residence, and present occupation? — 
A. Charles H. Madison. Residence. 35^5, Madison aA^enue, Pitts- 
burg, Pa ; train porter Baltimore and Ohio Railroad Company. 

Q. Do vou know the accused? If so, state Avho he is. — A. Capt. 
Edgar A.'Macklin, Twenty-fifth Infantry. 

(J. Were you a soldier in the United States Army ? — A. I was, sir. 

Q. Did you eA'er serve in the Twenty-fifth Infantry? If so, in 
what company? — A. My last service w^as in Company C, Twenty- 
fifth Infantry, sir. 

Q. Were you in Company C, Twenty-fifth Infantry, when the 
first battalion — Companies B, C, and D — went to Brownsville from 
Niobrara ? — A. I was, sir. 

Q. And you were with that company during the entire period C 
Company was at Fort Brown? — A. Yes, sir. 

Q. On August 13 and 14, 1906, you Avere at P^ort Brown, Tex. ?— 
A. Yes, sir. 

Q. Did anything unusual happen on the night of August 13, about 
midnight ? — A. I was aAvakened by the explosion of firearms. 

Q. And yoii Avere at that time sleeping in C Company barracks?— 
A. Yes, sir. 

Q. What did 3'ou do ? — A. I got up, put on my trousers, shoes, and 
after the " call to arms " being sounded I put on my belt and pro- 
ceeded to the armracks. 

Q. Did you get a rifle then or soon afterAvards? — A. After I went 
to the racks I Avas ordered to go doAvn and find the noncommissioned 
officer in charge of quarters, Avho Avas Sergeant Quarles — not Sergeant 
Quarles, but Sergeant BraAvner. I met him at the foot of the steps 
and he came upstairs and started to unlock the racks, and I got a 
rifle out of the first rack unlocked. 

Q. Then, did you go doAvn and fall in in front of company bar- 
racks Avith the compan}^ ? — A. I did sir. 

Q. Did you about- this time receiAT orders from any officer to 
go and find somebody? — A. I received orders from Lieutenant 
Grier to go over to Captain Macklin's quarters and tell him to report 
to the commanding officer, by direction of the commanding officer, 
Avho was present at the time. 

Q. At this time Avas shooting still going on? — A. A fcAV shots 
Avere being fired ; yes, sir. 

Q. Most of the shooting Avas oA^er at that time? — X. Yes, sir. 

Q. About hoAv many shots do you suppose Avere fired all together?— 



47 

A. Well, I doivt really know; something over 100; mjiyl)e 1'25 or 150; 
I coiiklirt really ^ay. 

Q. AVas most of this shooting ap])arently within a few hundred 
yards of the barracks or not ? — A. It seems it was. sir. 

Q. And it started where, with reference to B Company barracks — 
apparently? — A. I don't know the names of the streets. It seemed 
to be between B Company and C Company, the fire coming from to- 
wards town — the reports — seemingly. 

Q. The majority of those shots, however, were fired within a dis- 
tance of how much from B Company barracks, do you suppose? — 
A. I don't know, sir: I couldn't really say when the first shots were 
fired; I was awakened by the first shooting. 

Q. But the majority of the shots fired in the earlier part of the 
shooting — I do not mean the very first shots, bnt the majority of the 
shots fired in the earlier part of the shooting — were apparently fired 
near the post or at a great distance away from the post ? — -A. Well, it 
seemed they might be about IHO yards from the post, seemingly. I 
don't know, sir; I couldn't say positively. 

Q. AYas the " call to arms " sounded l)y more than one trum- 
peter? — A. Yes, sir; it was sounded by the trumpeter on the parade 
ground and was also taken up by the trumpeters in the next bar- 
racks, and also by one of our trumpeters in our barracks. 

Q. And by D Company also? — A. I don't know, sir; B barracks 
was next to me. 

Q. How long did the bugles continue sounding, apjiroximately ? — 
A. About three minutes, perhaps. 

Q. After receiving this order from Lieutenant Grier to go and 
find Captain Macklin. Avhat did you do? — ^A. Lieutenant Grier or- 
dered me to go load my rifle and report to the commanding officer. 

I loaded my rifle, went over to Captain jNIacklin's quarters — ^the first 
line of officers' quarters, next to the administration building; I went 
into the door closest to the hospital toward the hos])ital. 

Q. Will you point out on the map the route followed by you from 
C Company barracks to Captain Macklin's quarters? — A. (Stepping 
to map and indicating thereon.) Here is the adminstration build- 
ing; C Company's quarters are here. I came diagonally across the 
parade ground to this building here [indicating building marked No. 

II on the map.] 

Q. INIadison. I hand you a photograph marked Xo. 5 and I ask 
you if vou recognize it? — A. I do. 

Q. AAliat is it?— A. Fort Brown, Tex. 

Q. AYhat part of Fort Brown? — A. The line of officers* qiuirters 
and one noncommissioned staff' building. 

Q. Does it show the entire line of the officers' quarters, or just one 
end? — A. Just one end, the end next to the administration building. 

Q. That would be the east or west end — you can look at the map 
there — is it the west or the east 6nd ? — A. It is the east end. 

Q. Xo — there is north [indicating]. East is up here; west is down 
towards the administration buildings. — A. Oh, it is the west end. 

Q. Do you know who occupied that small building shown on the 
right of the picture? — A. A civilian clerk for the quartermaster's 
department. I don't know his name. 

Q. AAlio occupied the next building? — A. I don't know, sir: I 
think it was empt3\ 



48 

Q. Who occupied this building here [indicating on picture] ? — 
A, Captain Macklin — the left-hand side. 

Q. I will ask you, Corporal Madison, when I said who occupied 
the next building, and you replied, '" I don't know, sir ; I think it 
was empty," did you refer to the entire double building or to what ? — 
A. One side — or No. 12. 

Q. No. 12, you think, was empty? — A. Yes, sir. 

Q. And the other half of that l)uilding— that is. No. 11 

A. Yes, sir. 

Q. Was occupied by w^hom? — A. Captain Macklin. 

Q. Wliere is that building, Nos. 11 and 12, with reference to the 
small house on the right of the picture? — ^A. As I hold this picture 
in my hand, it is on the left of that small building. 

Q. Is it the next building to it? — A. The next building; yes, sir. 

Q. I will ask you to make a cross right over what you believe to be 
CajDtain Macklin's quarters — that is, mark.it over the side of the 
house that you believe he lived in — mark a heavy cross there, and 
sign your name — just write your name aljove it. [Witness marks 
exhibit as indicated.] 

Q. How do you know that this half, or this set of quarters, re- 
ferred to as No. 11, was the one actually occupied by Captain Mack- 
lin?— A. I was detailed sometimes in charge of quarters, and I 
carried the sick report over there to have the company commander 
sign it before taking it to the hospital. 

Q. Captain Macklin was your company commander, was he? — 
A. He was, sir. 

Q. About how many times, to the best of your recollection, had you 
been in charge of quarters and thus carried the sick rejiort to Cap- 
tain Macklin for his signature? — A. About three times, as near as I 
can remember. 

Q. That is, while you were at Fort Brown? — A. During my stay 
there. 

Q. And each time did vou find him in this set of quarters — this 
No. -11?— A. I did, sir. 

Q. Wliere did you find him — downstairs or upstairs? — A. He oc- 
cupied the second room downstairs, on the left. 

Q. The first room downstairs was furnished how, according to the 
best of your'recollection ? — A. The captain didn't have all his furni- 
ture loose ; I think he had a sofa in there, if I am not mistaken, but 
it had not been uncovered. I don't know what else. 

Q. And you say on each of these two or three occasions that you 
carried the sick report over there to him that you found him in the 
second room downstairs. Is that right ? — A. I did. 

Q. Was his bed there at that time? — A. He was sleeping down 
there at that time. 

Q. And you knew of no change in his sleeping quarters? — A. I 
did not, sir. 

Q. Did vou ever go in the other side of the house — that is, in the 
No. 12 side ?— A. No, sir. 

Q. Now, on the night of the 13th, when you reached quarters No. 
11, what did you see and do? — A. Allien I reached No. 11 I seen 
Captain Macklin's saber sitting outside the door on the porch, and a 
very dim light burning in there. I went into the hall way, and I 
called in a loud tone of voice, " Captain Macklin," about five distinct 



49 

times; after which I taken the butt of my rifle and rajiped on the 
floor five or six times, and after I eould not make anybody hear, I 
finally thoucrht he was not there. T returned back to the company 
and repoi-ted to Lieutenant (Jrier. The comj)any at that time was 
still standino; in front of the barracks. 

Q. The shooting: was all over by this time, I sui)pose? — A, It was; 
yes, sir. 

Q. How far inside of the front door did you go when you called 
and pounded? — A. I went back to the second door, on the left-hand 
side downstairs. 

Q. Were you near the foot of the stairs at any time when you 
called and pounded? — A. T was at the second door: I don't know 
how far the stairway back was, sir, that leads upstair--. 

Q. Then, after you rejoined the company, was the company moved 
elsewhere and placed in position ? — A. After I rejoined the company 
I had orders from Lieutenant Grier to step out of the line, unload 
my rifle. I did so. The company then was going along squads left; 
we moved around in the rear of C Company, in rear of the vacant 
barracks, and formed line of skirmishers. 

Q. Along by the wall? — A. The brick wall. There wasn't no 
brick wall by the vacant quarters. 

Q. Did you about this time receive orders from the commanding 
officer? — A. I had orders then to report to the conunanding officer, 
and the commanding officer directed me to take two men and make a 
patrol around the hospital and the quarters of the noncommissioned 
staff, and to report back to him. 

Q. AAlien you made this patrol, did you find any persons who had 
not been awakened, or who stated that they had not heard the firing 
or the bugle calls? — A. I went to the hospital at first and met a first- 
class sergeant of the Hospital Corps, and some convalescents stand- 
ing on the porch. He claimed that he had heard some shots passing 
over the building. I went from there to the noncommissioned staff — 
to the corral — those men were already up. I went from there to the 
quarters of the noncommissioned staff, which seemingly is a double 
set of quarters, right at the side of the ice plant — to the right of the 
ice plant — and I knocked on their do.ors, and they had not been 
awakened, sir. I awakened them and notified them of what had 
happened. 

Q. About how far in distance were these noncommissioned staff 
quarters from the ice plant ?— A. About 25 or 30 yards. 

Q. Was it customary down there for this ice plant to be operated 
during the night, making ice?— A. Yes, sir; they had been doing it. 
I don't know whether the plant Avas running that night or not ; I 
couldn't say. 

Q. But that was the custom down there, for the ice plant to run 
at night, making ice for the garrison ; isn't that correct ? — A. There 
was an engineer there when I passed there. I don't know whether 
he Avas running there that night or not ; I am not sure whether he 
ran it any night; but there was a man there at night. I think they 
did. but I couldn't say. I am not sure. 

Q. AMien you saAv this engineer was he apparently in his Avorking 
clothes ? — A. He was in his working clothes ; yer, sir. 

Q. Was the ice plant lighted ? — A. It was, sir. 



50 

Q, You don't remember, however, whether the machinery was 
actually in motion or not? — A. No, sir. 

Q. liiit the ice plant was well lighted, and this man was in his 
working clothes? — A. Yes, sir. 

Q. And he did not look as if he had just been aroused from his 
slumbers, but he looked as if he Avas there for business, did he not ? — 
A. Yes, sir. 

Q. Does that ice plant make a good deal of noise when it is 
going? — A. I don't remember ever being there and hearing it when 
in operation. I couldn't say; I don't know, sir. 

Q. With reference to the light that you saw in Captain Macklin's 
quarters, was this a brilliant light or a dim light? — A. A dim light, 
sir. 

Q. Did you see the lamp or lantern itself, or just the light given 
out by it ? — A. Just the light. I didn't pay any attention to what it 
was — candle or lamp. 

Q. Are you absolutely certain that you went on this errand to the 
quarters where you had always found Captain Macklin before? — 
A. I am positive I did, sir. 

Q. And on which side of the door was his saber standing, do you 
remember, on the right or the left, as you went in? — A. It was 
standing outside of the door. I don't remember whether it was to 
the right or to the left. 

Q. Is there any possibility that you went to any other quarters than 
No. 11? — A. I did not go to any other quarters, sir. 

Cross-examination by the Accused: 

Q. How long have you been in the service. Corporal? — A. Eleven 
years, nine months, and eight days, sir. 

Q. Where did you serve; what regiment? — A. In the Twenty- 
fourth Infantry and the Twenty-fifth, sir. 

Q. How long had you been in Captain Macklin's company? — 
A. From about December, 1904, to November 22, 1006. 

Q. How often did you visit his quarters before August 13? Do 
you remember? — A. I don't know, sir; I don't remember. 

Q. Frequently or not? — A. Only when I was detailed on some duty 
to go over there and do something, sir. 

Q. When you were in charge of quarters? — A. Yes, sir. 

Q. Do you happen to remember the last time before August 13 
that you visited his quarters? — A. I do not, sir. 

Q. How often did you go on in charge of quarters. Corporal? — 
A. I couldn't really say ; I didn't run the roster, and you would have 
to refer to the company records to find that out. sir; I don't know. 

Q. How many noncommissioned officers were there in that company 
at that time? — A. We had a full stall', with the exception of two men 
short— one on furlough and the other on rifle competition; he was 
the first sergeant, and that made us two noncommissioned officers 
short on that duty. 

Q. Would you say once every ten days — lijaw much or how little? — 
A. I couldn't say, sir; you would have to refer to the roster; it might 
have been ten days; may have been fifteen. 

Q. Can't you give any approximate idea at all? — A. I could not, 
sir. 

Q. Did you go on service once every three days? — A. I don't know, 
sir. 



51 

Q. Once every six days? — A. I don't know. 

Q. Once every five days? — A. I told you I could not ai\'e xou an 
approximate answer in that ivsjx'ct without r(>ferrin^- to the re<iister. 
If you had your roster, I could show you exactly how it ran. 

Q. But approximately you went on once in every ten or twelve 
days, did yon? — A. I oucss so. 

Q. AMiat kind of ni<:ht was this DUh of Angust ? — A. It seemed 
to be a very dark ni^rht. sir. 

Q. Was the post well lio;hted? — A. Well, the kind of lami)s yon 
had in one of those old posts — lit np with that. You know wliat 
kind of li<>ht that furnishes. 

Q. AVere there many lights in the post? — A. I don't know liow 
many were in tlie })ost, sir; tliere were a few in the ofKcers* line. 

Q. About what time of nioht was it that yon went over to Captain 
Macklin's (|uarters? — A. They say that the shootino- occurred about 
12 oVlock, and I went over there al)ont five or seven minutes after the 
shootino- occurred, or dnrino^ the time it was going on — just before 
it ceased. . 

Q. Do you mean that you went over 'there five or seven minutes 
after the shooting had ceased or five or seven minutes after it had 
occurred? — A. After it had connnenced. 

Q. Was it still going on when you went over there? — -A. A few 
shots were still being fired when T had orders to go over there. 

Q. How did this shooting atl'ect you? — A, Frame your question- 
in Avhat respect, sir? 

Q. I mean what were your sensations during this shooting? — 
A. Well, of course, a man would naturally have a little fear when he 
was first awakened ; he would think some one was firing upon his 
quarters — most like any other man would be. That is the way I felt. 

Q. You felt somewhat frightened?— A. At first I did. when I first 
awakened ; yes, sir. 

Q. Have you a very loud voice? — A. Yes, sir. 

Q. Did you have any trouble in making yourself heard as a witness 
in the last court you testified before? — A. I did not, sir. 

Q. What report did you make to Lieutenant Grier when j'ou re- 
turned to the company? — A. I told Lieutenant Grier I couldn't find 
the captain over there. Lieutenant Grier asked me if I went up- 
stairs; I told him I did not. 

Q. Do you know why there was any inquiry as to whether or not 
you had gone uj^stairs? — A. I do not, sir. 

Q. Did you notice any light in the set of quarters adjoining Cap- 
tain JVIacklin's, in the same building? — A. I did not, sir. 

Q. AVas there any light there, could you testify to that positively, 
or not? — A. I didn't notice, sir. 

Q. This last shooting that you heard, Avhere w-as it located with re- 
spect to the post. Corporal ? — A. "\Miat do you have reference to? 

Q. Can you give any idea as to the api)roxiinate location of the 
shooting that you described as being in town that night, the latter 
part of that shooting? — A. Well, it seemed a good distance away — 
just a few shots. 

Q. And with reference to the post, it was nearest to what part of 
the post — the administration building or toward the guardhouse, or 
how^? — A. No, sir; it was in the rear of C and B Company. 



52 

Q. How did you happen to know that those people living in the 
noncommissioned set of quarters were asleep when you went around 
there? — A. I was sent around there to make a careful investigation 
on patrol, and I w^ent to their doors and knocked on their doors to see 
if they were there, and to make proper reports to the commanding 
oiRcer. 

Q. Wliere was this light that you saw in Captain Macklin's quar- 
ters? — A. I never paid any attention to the light in there — I don't 
know whether it was up — seemingly it might have been in the hall, 
may have been in the hall or upstairs; I couldn't say. It might have 
been up high or low. I don't know whether it was a lamp or a candle. 

Q. Was it a brilliant light at all?— A. A dim light, sir. 

Q. If it Avas a lamp, would it have been a lamp turned down, do 
you think ? — A. Yes, sir. 

Q. If you went into Captain Macklin's quarters that night do you 
think you would have awakened him? — A. By the noise I was mak- 
ing, and after so much shooting and sounding to arms going on, it 
seemed like I should have wakened him ; yes. sir. 

Q. Had you ever had any difficulty in awakening Captain Macklin 
before: had you ever had occasion to attempt to awaken him? — A. I 
had occasion at Niobrara to attempt to awaken him. 

Q. Did you ever have any trouble in doing it? — A. Well, in the 
absence of his wife he was kind of hard to aAvaken once or twice 
Avhen I had occasion to carry a sick report to his quarters. 

Q. Where was the entry to that stairway within the hall, in quar- 
ters No. 11 ? — A. Leading upstairs ? 

Q. Yes. — A. Facing the quarters, as I sit now, it was on the right- 
hand side, I should think, sir ; being in double quarters. 

Q. Was the entry in the front or rear? — A. I don't know, sir. It 
may be in the rear: I never paid that much attention to it. 

Q. Now, just think, if you can, and try to give us your belief 
about that ? — A. I couldn't give a definite statement concerning it, be- 
cause I did not go over there really to inspect the quarters. I don't 
know, sir. 

Q. Now, I just want you to think a moment. Corporal, before you 
answer that, and see if you can not remember whether that entry to 
that stairway was to the front or rear? — A, I can suggest, but I can 
not give a definite statement. 

Q. Where do you think it was? — A. I think it was in the rear. 

To this question the judge-advocate objected, as follows: 

I object to that. I do not know myself which way this stairway ran — 
whether it was in the rear, or ran from the rear toward the front, or one side 
or the other : bnt this witness has stated before that he doesn't know, all he 
can do is to guess ; it is a mere matter of opinion, and not a statement of fact, 
and this is what he has stated several times. But inasmuch as counsel insists 
upon it, I think it either ought not to be regarded in evidence, or that this line 
of questioning be discontinued, because, according to the witness's own state- 
ment, the only times he was ever down there Captain Macklin was downstairs, 
and he had never had occasion to go upstairs or pay any particular attention 
to it. 

Associate Counsel for the Accused. May it please the court, I 
am very glad to know what is in the mind of the judge-advocate 
with reference to this i^articular set of quarters. If we desire to call 
him as a witness to establish any point in regard to that particular 
set of quarters we will do so. For the present we are trying to gei 



53 

at what is in the mind of the witness with respect to the location of 
those quarters, and we tliink it proper to brin^ out any litth' detail 
that he remembers with resj)eet to that set of (juarters, which will 
serve to fix the situation in the minds of the court. This witness is 
not being examined upon any knowledge .that he had of the set of 
quarters that Captain Macklin occupied at Fort Brown. He is being 
cross-examined on particular points that he has given — that he went 
to that ])articular set of (juarters — and it is with the jmrpose of sug- 
gesting to this court and suggestiiig to us whether or not he is posted 
as to the particular set of (puirters that he went into. It is not to 
determine what his knowledge of this set of (jiuirters is. 

The President. The Avitness should answer as to what he knows. 
If he does not knoAv. he should say so. On such questions he should 
make a definite statement, and not a guess. Will the judge-advocate 
have that last question read? 

(The reporter read the last (juestion and answer.) 

The Judge- Advocate. I object, sir, to its being considered as evi- 
dence — the statement that he thought it was in the rear — as tending 
to show that the quarters to which he went were not those occupied 
by Ca])tain Macklin if the stairway in Captain Macklin's quarters 
happened to run in some other direction, as the witness merely an- 
swered this question after a number of questions to which he replied 
that he did not knoAv which way it went and could not really give an 
approximate idea — but finally, after being urged again and again, 
he stated that he thought it was one way. but he didn't know-. And 
I request that the court not consider that last question and answer as 
evidence. 

A ME:\rBER. I move the court that the objection be not sustained, 
without clearing the court. The court is competent to decide wdiat 
question is proper. 

The accused, his counsels, the reporter, and the judge-advocate 
withdrew and the court was closed; and on being opened the presi- 
dent announced in their presence as follows: 

The ohiection of the jiKVire-iulvocitc! Is not sustained. The question will 
stand — I think it has already heeii answeivd — the (jucstion and the answer will 
stand. 

Q. Corporal, will you state a little more definitely what w-as the 
actual order that was given to you by Lieutenant Grier with respect 
to visiting Captain Macklin's quarters? — A. The commanding officer 
told Lieutenant Grier to have a man go over there to Captain Mack- 
lin's quarters and see if he was there, and perhaps if he was not 
there he might be down about his guard — but to send a man over 
there. Lieutenant Grier called me and told me to load my rifle, go 
over to Captain Macklin's quarters to see if he was there, and if he 
Avas there, to tell him by order of the commanding officer to report to 
the conmianding officer: and I did so. 

Q. Now, Avhen you came back and reported to Lieutenant Grier, 
what w'as your report, as definitely as you can tell it? — A. I reported 
TO Lieutenant Grier I could uot fin<l the captain. He asked me did 
I go upstairs: I told him I didn't. 

Q. But you understood that the intention that was expressed in 
his order was to the effect that vou were actually to awaken Captain 
Macklin if he was in his (juarters? — A. Make that statement again, 
please. I don't understand it. 



54 

Q. Did you understand that the order of Lieutenant Grier, as 
given to you, was in effect an order that you were to go over to Cap- 
tain Macklin's quarters, and if Captain Macklin was there, that you 
were to actually find him, and if he Avas asleep, that you were actu- 
ally to awaken him; did you understand that, Corporal? — A. I 
understood the order was' to go to Captain Macklin's quarters and 
see if he was there, in his bed — Avhere he had been sleeping ; of course 
I was not supposed to prowd all through the quarters. I taken it 
that way. Of course, if I had knoAvn he had slept upstairs I would 
have went upstairs; but I went there and I made enough noise, if he 
was upstairs or downstairs, I should think, to awaken him. 

Q. But you actually did not go into the room he was sleeping in, 
did you? — A. I never went upstairs. 

Q. What room did you go in. Corporal? — A. I didn't go in any 
room. I went to the door of the room I generally went to, and 
knocked — the door was open — and I called in a loud tone of voice, 
" Captain Macklin ! " I did this in the w^ay of thinking he had 
heard the firing and might perhaps think some one else was coming 
to his quarters, and I called, thinking he might know my voice — and 
then, after calling four or five distinct times. I rapped on the floor 
with the butt of my rifle, and I thought if anybody had been there 
surely they would have answered. 

Q. Now, I asked you if actually you did go into the room in which 
Captain Macklin was asleep, and you said you did not go into the 
room upstairs? — A. I did not, sir. 

Q. Did you actually go into that room downstairs? — A. I went 
to the door — the rooms are very small — I went to the door, and the 
door was open. 

Q. Now, what did you see in that room, if you saw anything at 
all? — A. I didn't pay any particular attention. I didn't distinguish 
any furniture or anything, if that is what you have reference to. 

Q. I want to know just what you saw in that set of quarters? — A. I 
never went there to figure out what kind of furniture was in the 
house; I went there just the same as if I had been sent there in time 
of warfare — on an urgent occasion — and I went there, as near as I 
knew how% and made the necessary reports. 

Q. I believe tha-t you, as corporal of that company, received an 
order from the commanding officer, and that you made your best 
effort to carry out that order. — A. I did, sir. 

Q. And in carrying out that order you went over to the set of 
quarters you believed Captain Macklin lived in?^ — A. I went in the 
set of quarters I knew he lived in. 

Q. Now, what I am trying to find out from you is whether you did 
actually carry out the order, no matter what your intentions were ? — 
A. I did carry out the order. 

Q. And I want to know what you saw in that particular house to 
show you, or to show us, whether or not you Avere mistaken in the 
house, and to show what you did when you actually w^ent there. I 
will just make this explanation so you can understand wdiat these 
questions relate to. — A. Well, 1 have told you what I did when I 
went in there; but as to going to look and see if he was asleep in an 
iron bed or a (jovernment bunk, I did not do that ; I went there and 
made enough noise to awaken anybody, except they were in a trance, 
seemingly. 



55 

Q. Do YOU know where Captain Mackliii slept in liis quarters? — 
A. I know where he slept the last time I went there carrying the sick 
report. 

Q. But you don't remember what date that was? — A. No. sir; I 
don't. 

Q. Do you renieniber how lono- it was before this \'M\\ of August? — 
A. No, sir. 

Q. You do not have any ap])roxiuiate i(U'a of what that time was, 
do 3'ou, Corporal?^ — A. What do you have reference to, sir? 

Q. I say, you do not have any approximate idea of what that time 
was that you last carried the sick report, or how long before the 13th 
f)f August that was? — A. No, sir; I don't. They were going on prac- 
tice marches by comi)anies, and our doing guard duty there — we 
didn't get but very little time for guard duty and different duties — 
and sometimes it might be five, seven, or eight, or ten days, for all I 
know, and I couldn't give a definite answer without reference to the 
companies' records. 

Q. I just want your recollection of it? — A. I don't know. 

Q. You do not know, then, where Captain Macklin A. 1 know 

where he was supposed to be sleeping all the time before. 

Q. You do not know where Captain Macklin slept on the night of 
the 13th of August ? — A. I don't knoAv, sir. 

Q. You do not know what was in this room downstairs that you 
opened the door of? — A. There was a desk in there, if I am not mis- 
taken — I am quite sure there was. 

Q. Was there anything else? — A. I coiddn't go to work and name 
to you the different furniture there. Without any disrespect, I 
didn't stay there — over there — myself, but I went there to awaken 
the captain up, where he had been sleei^ing. 

Q. Was there a bed there? — A. There had been a bed there. 

Q. No, no; I mean was there a bed there on this night you went 
to the house? — A. There was a very dim light, and the door was 
open; I called and I rapped on the door, but I didn't go to look into 
the bed. or to prowl around, or anything like that ; and after the 
commanding officer made the remark that the captain might not be 
in his quarters, might be down with his guard, I didn't go to prowl 
around at all. 

Q. Was there a bed in this particular room? — A. I don't know. sir. 

Redirect examination by the Ji dge- Advocate : 

Q. Corporal Madison, you stated the guard duty down there at Fort 
Brown was rather severe, particularly^ upon tlie noncommissioned 
officers? — A. Yes, sir. 

Q. And were the noncommissioned officers kept particularly busy — 
generally either on guard, on old guard, or on special duty ? — A. They 
wasn't on any special duty, to my knowledge, sir. 

Q. In your company? — A. In my company, you say, on special 
duty ? 

Q. Yes. — A. Well, I don't remember of any particular noncom- 
missioned officers being on special duty at that time, sir, to my rec- 
^ollection at the present time; but guard duty — by going out once a 
week on these marches — sometimes two companies went out and one 
company had to furnish the guard, that is the reason I say it made 
guard duty pretty strict, and if I am not mistaken we had 46, 



56 

and by the extra and special duty mentioned, of course, it didn't 
leave but very few men for dut3^ and then the noncommissioned 
officers would have to be on for a time, and then take their turn out 
on the march, and then come back and go on guard again. 

Q. Now, Corporal Madison, what is your idea as to how often 
you yourself went on as a noncommissioned officer in charge of 
quarters? Do you think it was once every five or six days, or once 
every ten or twelve days; which is the nearer do you think? — A. 
Well, I don't really know, sir. 

Questions by the Court: 

Q. Corporal, you stated that you went over to Captain Macklin's 
quarters under instructions from Lieutenant Grier, coming from the 
commanding officer? — A. Yes, sir. 

Q. To find if Captain Macklin was there, and in case he was there 
to tell him that the commanding officer wanted him? — A. I did, sir. 

Q. You went to the room in his quarters where you knew, or 
thought you knew, he slept? — A. I did. sir. 

Q. You came away without finding the captain, and you state 
I)ositively to the court that Captain Macklin was not in that room? — 
A. Downstairs, I did; yes, sir. 

Q. You can state that? — A. You say did I state that? 

Q. I want to know Avhat you can state. You are absolutely certain 
that Captain Macklin was not in that room when you went there and 
knocked on the door? — A. The door was open. 

Q. Well, when you knocked on the floor? — A. I never pulled back 
the cover or anything. I can't say whether there was a bed in there 
or not; but I made enough noise, if he was there, excepting he 
being in a trance, why, he would have been awakened — if he was 
downstairs. I can state that positively to the court. 

Q, I want you to state for the information of the court, if you can, 
whether you knoAv or do not know if he was or was not in that room. 
You went there to find him; you had definite orders — that is, by 
knocking there? — A. Yes, sir. 

Q. And 3^ou went to the room where you thought he was. Now, 
did you go away without knowing whether he was there or not, or do 
you know he Av'as not in there? — A. I never went into the room, or 
anything like that ; but I can positively state to the court that the 
Captain was not sleeping downstairs at that time when I went there. 
If he was, he was in a trance. 

Q. Yes; you have stated that before; but I w^ant you to state 
positively just exactly the fact: Was he or was he not there? — A. I 
Vv^ouldn't begin to state to the court that I went there and prowled 
around the room, because I didn't. 

Q. Did you, at this time, see Captain Macklin. or did you not? — 
A. I did not, sir. 

Q. Was there, in the vicinity of Captain Macklin's quarters, either 
any path or lamp-post, or any feature of the landscape that would 
enable you to mark that house so that you could not mistake it? — 
A. There is a lam^D-post between the first and second sets of quarters, 
if I am not mistaken, not very far from his quarters. 1 am sure I 
went to his quarters. 

Q. What makes you sure you went to his quarters; how did you 
locate the house that night ?— A. Why, I' located it by going direct 



57 

lo his (iiiarters, and I had been there so often I know I went to his 
quarters — I am positive I did. 

Q. After 3^on had been to Captain ^lacklin's quarters. Corporal, 
and had left there, you left there thinking you had carried out your 
orders — in other words, you left there thinking- that Captain Macklin 
was not there; is that correct? — A. I did, sir. 

Q. Was there a light in the next building to Captain Macklin's 
quarters— in No. 10— at that time?— A. No. 10? 

Q. Yes; the next quarters east of Captain Macklin's? — A. That 
is where Lieutenant Lawrason lived. I don't know, sir, whether 
there was a light there that night or not. 

Q, In going to Captain IVfacklin's quarters from C Company, did 
you ])ass near these quarters No. 10 or not? — A. I went in a triangu- 
lar direction acros?; the i)arade groiuid direct from C Company over 
to the last set of quarters, which was the first set of quarters from the 
administration building, to Captain ]Macklin"s quarters. The next 
set of quarters Avas No. 9 and No. 10. I know very distinctly the 
difference. 

Q. Was there a light in No. 10? — A. I never paid that much at- 
tention. That was another officer's quarters, and I was not sent to 
his quarters. 

Q. You do not ivmember, in passing near there, whether you 
glanced at the quarters or not? — A. No. sir: I don't remember it. 

Q. Corporal, you knew that Captain ]\Iacklin was officer of the 
day, did you not? — A. I did, sir; before I left the quarters. 

Q. You just stated you saw outside on the porch his saber?— A. I 
did, sir. 

Q. Did you report that fact when you got back to the commanding 
officer, that you had not found Captain Macklin, but had seen his 
saber on the poarch ? — A. I didn't make that report to the command- 
ing officer at all. I reported to Lieutenant Grier. 

Q. Well, to whomever you reported. I want to know if you men- 
tioned the fact that although you could not find him you saw his 
saber? — A. I don't remember I told him that, because the officers 
have two sabers, and I did not know but that some other officer 
might have been Avith him. I did not make that statement. I told 
him I couldn' find him. On a night like that I dare say there 
wouldn't any of the men in here think of making that statement 
probably, because I thought just like the commanding officer, that if 
he was not in his quarters he was down Avith his guard. 

Q. The fact of his saber being there did not suggest to you that 
he might he in the building somewhere? — A. No. sir. After the ciU 
to arms was sounded it appeared to me that his saber might be there, 
and after the firing commenced he would put on his six-shooter, just 
like he Avas going into the field, just like any other officer would do, 
sir — that is the reason I didn't do that. 

Redirect examination by the Juddge-Advocate : 
Q. You s-tated that Lieutenant LaAvrason liAed in quarters No. 

10? — A. If I am not mistaken. I am not positiA'e. l)ut I think he 

did, sir. 

Q. Who lived in quarters No. 0; do you know i — A. I am not sure; 

I don't know Avhether Lieutenant Higgins lived there or not. I am 

not sure; I don't knoAv. 



58 

Q. Did anyone live in quarters No. 12? — A. I don't know, sir; I 
don't think so. All the officers were away from the post except 
about four at that time, sir. 

Q. Was this desk you saw in the bedroom downstairs, did that 
desk look like a desk you had ever seen there before, or not? — A. Yes, 
sir; it was the company commander's desk. 

Questions by the Coitrt : 

Q. You spoke about pulling the cover back — that you did not pull 
the cover back. What did you mean by that "cover?" — A. I mean 
by this, the company commander had been sleeping down there, and 
they wanted me to make a statement that I did go to the bed, if 
there was a bed in there — or something like that. That is what I 
meant by that. 

Q. You were referring to the cover of the bed, were you? — A. Of 
the bed ; yes, sir. 

Q. Corporal, you said this desk looked like an ordinary company 
commander's desk. Do you mean that it had a high top to it, or was 
it fiat like a table?— A.' Why, flat like a table. I think that is the 
kind he had — I am not sure: I wouldn't be positive about that, either. 

Q. Was this desk you saw in this room, was it tlie same desk the 
company commander signed sick reports on? — A. It was the same 
thing he signed the sick reports on ; yes, sir. 

, Recross-examination by the Accused : 

Q. Just point out the light that you described in your previous 
testimony as being located near Nos. 11 and 12. 

A Member. You mean the street lamps ? 

Q. The street lamps. — A. As to how arranged ? 

Q. That particular one that was nearest that set of quarters? — 
A. Well, I don't know for sure, but it should have been setting be- 
tween 10 and 11, something along there, the way the lamps ran up 
and down the front of the street. 

Q. You think it was between 10 and 11 ? — A. I am n»t sure. There 
was one post, though, over to this line — it may have been near No. 10, 
something like that. 

Q. You wouldn't say it was near where this check mark is? [In- 
dicating on map.] — A. No, sir; I don't know. 

Q. How do you know that officers have two sabers? — A. Well, I 
don't know. I have seen officers that had two sabers. 

Q. Did Captain Macklin have two sabers? — A. I don't know, sir. 
Captain Macklin used to leave his saber in the orderly room some- 
times. I don't know whether he had two or not. 

Q. You never saw two, did you ? — A. No, sir. 

Q. Corporal, what idea did you have in mind when you spoke 
about the cover of the bed there in that back room? — A. In the back 
room ? 

Q. Yes. — A. The idea I had in mind, it seemed to appear to some 
of the members of the court that I should have went into the room, 
and seen if the bed was in there, and seemed to think I didn't do my 
duty by not doing so. 

Q. So, you have not in your mind any idea of having seen a bed or 
cover in there? — A. Not on that night; no, sir. 

(Excused.) 



59 

Joseph TTenhv Howaud. a witness for the |)i-()>^('ciitioii. was duly 
sworn, and testificM] as follows: 

Direct examination l)y the .Ii ooi;-Ai)\<)catk: 

Q. What is your name, present residence, and o<'cu))ation ? — A. 
Joseph Henry lloward. Sl'2 Twelfth sti-eet. Louisville. Ky. ; lal)orer. 

Q. Do you know the accused? If so. state who he is. — A. "^'es. <ir; 
Captain Macklin. 

Q. AVere you in the service of the Unite<l States Army on August 
13, 1{)0()? If so. state in Avhat company and regiment and where 
you were stationed. — A. Yes, sir; I was in C'ompany D. Twenty- 
fifth Infantry, at Fort Brown, Tex. 

Q. What rank did you have in the company? — A. Private. 

Q. Did YOU go on iruard about 11 o'clock on the morning of August 
13?_A. Yes. sir. 

Q. To what relief were vou assigned? — A. The first relief. 

Q. And what ]X)st (—X. Post No. 2. 

Q. That ])ost extended where in the daytime? — A. In the rear of 
the soldiers' barracks. 

Q. In the rear of C, B, and D barracks, or did it also extend in the 
rear of the vacant barracks? — A. In the rear of the vacant barracks 
also. 

Q. And at night, or between retreat and r-eveille, where did your 
post extend ? — A. Around the barracks. 

Q. Entirely around the four sides of the barracks? — A. Yes. sir. 

Q. Keeping them on your left? — A. Yes, sir. 

Q. What time were you posted the last time you were on the post 
prior to check roll call on the night of August the 13th? Do you 
remember? — A. The last time? 

Q. Was it about 10.30?— A. I Avent on about 10.30: yes, sir. 

Q. And you would have been relieved at what time ordinarily? 
You Avent on at 10.30? — A. I should have been relieved at 12.30. 

Q. Did you hear "' call to quarters " and " taps '* sounded that 
night ? — -A. Yes. sir. 

Q. Could you hear the noncommissioned officers in charge of quar- 
ters report to the officer of the day? — A. Yes, sir. 

Q. Did you see the officer of the day after that? — A. Yes. sir. 

Q. Under Avhat circumstances? — A. I saAv him on post; he came 
around and received my orders. 

Q. Then, after he asked you your orders, did he leave the vicinity 
of your post? — A. Yes, sir: he went on avvay from me: I suppose 
he did. 

Q. And did .you see him again Avithin a short time? — A. Yes. sir. 

Q. Where Avas he going then? — A. He Avas coming aAvay from the 
gate Avhen I saAv him. 

Q. Was anyone Avith him ? — A. There Avas some children along 
Avith him. 

Q. Did you see him again ? — A. No, sir. 

Q. Before the next morning — before daylight the next morning? — 
A. Xo. sir. 

Q. Did anvthing unusual hajipen about midnight of August the 
13th ?_ A. Yes. sir. 

Q. AVhat ? — A. The shooting in the town. 



60 

Q. It apparently started where? — A. It first started over in the 
road. 

Q. The garrison road — the road that runs along by the brick 
wall? — A. Yes. sir. 

Q. And about opposite which company barracks, could you tell? — 
A. No, sir; it was away from the company barracks. 

Q. This shooting was away? — A. The first shooting was; and then 
it opened up again in the rear of the barracks — in the alley. 

Q. In the alley that runs between Washington and Elizabeth streets 
and parallel to those streets — the so-called Cowen alley ? — -A. Yes, sir. 

Q. Was there a good deal of shooting? — A. Yes, sir. 

Q. What kind? — A. Loud reports; every kind of different guns, 
seemed to be. 

Q. Rifles and revolvers, and so on ? — A. Yes, sir. 

Q. Where were you at the time this shooting began in the alley? — 
A. I was in the rear of the barracks; at the interval between B and C 
companies' quarters. 

Q. And after this shooting had been going on for a few moments, 
did you do anything yourself? — A. Yes, sir; I gave the alarm. 

Q. How did 3^ou do it ? Where did you go ? — A. I gave the alarm 
in the rear of the barracks : in the interval between B and C Company 
barracks. 

Q. By calling? — A. By calling, " The guard, post No. 2.'' 

Q. Then what did you do? — A. I went between B and C Company 
barracks and gave the alarm on the front side. 

Q. How did you gi^^e the alarm this time? — A. By discharging 
my piece and calling the guard. 

Q. How many times did you discharge your piece? — A. Three 
times. 

Q. In what general direction? — A. It was elevated toward the 
officers' line. 

Q. Did the ''call to arms" begin about this time? — A. Yes, sir. 
"Wlien I fired the last shot the " call to arms " began at the guard- 
house. 

Q. Was this "call to arms'' taken up by anyone else? — A. It was 
caken up by the musicians over at the barracks — taken up by B Com- 
pany musicians, and some other companies also taken it up. 

Q. And those bugles sounded for how long, approximately — one 
minute or two minutes or five minutes, or how long? — A. About two 
or three minutes, I suppose. 

Cross-examination by the Accused: 

Q. Henry, how long have you been in the service ? — A. I have been 
in the service three years and eight days. 

Q. In what company and regiment did you serve? — A. D Com- 
pany, Twenty-fifth Infantry. 

Q. Your complete service? — A. Yes, sir. 

Q. Do you remember what was the date of your second enlist- 
ment? — A. I was on my first enlistment. 

Q. You said you had served three yearsi and eight days. — A. I was 
held eight days overtime on my first enlistment. 

Q. What time was taps sounded that night at Fort Brown? — 
A. At 11 o'clock. 

Q. What were 3'our hours on post No. 2? — A. From half past 



61 

10 until half past 12 tour of duty, and 1 stayed on the post overtime — 
it was something after 1 o'clock before I was relieved. 

Q. From halt past 10 until 1 o'clock? — A. It was something after 
1 o'clock. 

Q. You say that the officer of the day, Captain Macklin, visited 
you on post after taps?— A. Yes, sir; innnediately after taps. 

Q. From what direction had he come wlien he reached your post, 
do you know? — A. He came from the parade ground. 

Q. This Avas the first post he visited, was it? — A. Yes, sir. 

Q. How long did it take you to turn over your orders, have you 
any idea ? — A. No, sir. It only taken me a feAV seconds. 

Q. What direction did Captain Macklin go from your post? — A. I 
was in the rear of the quarters when he received my orders and he 
went up toward the gate. 

Q. Toward the Elizabeth street gate? — A. Yes, sir. 

Q. He went toward the gate? — A. Yes, sir. 

Q. How long was it after he had left your post that you saw him 
with these children there on that walk leading in from the gate? — 
A. About twenty-five minutes. 

Q. About twenty-five minutes? — A. Yes. sir. 

Q. Did you hear any disturbance there at this particular time when 
he was with those children ? — A. I heard the children. There seemed 
to be someone laughing and talking out in the street before I saw 
them ; there was someone out in the street laughing and talking, 
and shortly after I saw Captain Macklin and the children passing 
me, going doAvn tlie road. 

Q. But I mean you did not hear any particular disturbance among 
these children, other than this laughing and talking? — A. I heard a 
dog barking. 

Q. Did that have any reference to these children? — A. I don't 
know, sir. 

Q. Where was this dog? — A. He seemed to be out in the street. 

Q. Xear them? — A. Down in that direction. 

Q. Barking at them? — A. I don't know, sir — but this dog was 
barking at the same time these people were laughing and talking out 
in the street. 

Q. Now, your estimate, then, of the time this occurred was about 
twenty-five minutes past 11? You say it was about twenty or 
twenty-five minutes after Captain Macklin had visited your post? — 
A. Yes, sir. 

Q. Did j^ou see where Captain Macklin went from that locality? — 
A. He went straight across the parade ground. 

Q. Toward the officers' quarters? — A. Yes, sir. And the chil- 
dren went that way also. 

Q. "^^^lose were those children ; do you know ? — A. No, sir. 

Q. Do you know whether they were post children or town chil- 
dren? — A. I taken them to be children who were living in the post. 
I don't know. 

Q. Why did you take them to be children who were living in the 
post? — A. They were coming in at that time of night, and I thought 
maybe they were coming home; I thought they lived in the post 
somewhere. 

Q. How long was it after this shooting first began that you 

1643—07 M 5 



62 

sounded the alarm — that you gave the alarm there by firing your 
rifle? — A. About two seconds. 

Q. Do you think it was that near the first shot? — A. I didn't give 
the alarm until the fusillade opened up in the alley. 

Q. T^'liat I mean, Howard, is how long after the shooting first 
began was it that you fired your rifle out in front of B and C Com- 
pany barracks ? — A. It was a minute from the time that I heard the 
first shot until I fired the rifle in front of B Company's quarters. 

Q. And you fired your rifle three times? — A. Yes, sir. 

Q. And with reference to the last shot you fired, when did the 
" call to arms " come ? — A. About the time that I fired the last shot 
the " call to arms " was sounded, from the guardhouse. 

Q. You testified what particular musician sounded that first " call 
to arms " — I mean, not his name, but whether he was a musician of 
the guard or company musician? — A. It was sounded from the 
guardhouse. I suppose it was the musician of the guard. 

Q. Now, where was it next sounded from? — A. At B Company's 
barracks. 

Q. How many musicians? — A. I don't know, sir. B Company's 
musicians sounded it. 

Q. Both of them? — A. It sounded like it was two or three. 

Q. Well, how many musicians did B Company have — do you 
know?— A. Two. 

Q. It could not have been sounded by more than two, then ? 

Q. AAliere was it next sounded from? — A. All the way down the 
line among the companies. 

Q. C Company's next? — A. Yes, sir. 

Q. And then D Company's? — A. I am not sure; it sounded like 
more than one musician : I don't know how many it was. 

Q. Do I understand that your idea of this was that " call to arms " 
was sounded first by the musician of the guard, and then taken up 
by B Company or by C, or both the other companies ? — A. Yes, sir. 

Q. Did you see Captain Macklin again on the night of the 13th or 
morning of the 14th, after half past 11? — A. Xo, sir; I don't remem- 
ber seeing him any more. 

Q. Did you see any of the officers in command of the companies 
after they had taken position along the wall, in the rear of the com- 
pany barracks? — A. Yes, sir. 

Q. Did you see the officer in command of C Company? — A. No, sir; 
I do^'t remember seeing him. 

Q. Did you hear him? — -A. Lieutenant Grier — I heard him. 

Q. You heard his voice, did you ? — A. Yes, sir. 

Q. You were familiar with that? — A. Yes, sir. 

Q. AVere you on post when Captain Macklin came and relieved 
him, or do know anything about that? — A. I don't know when Cap- 
tain Macklin came. 

Questions by the Court : 

Q. You stated that Captain Macklin went back toward his quarters 
with those children ; they went in the same direction. How far Avere 
you from Captain Macklin at that time? — A. I was about 50 yards, I 
guess. 

Q. Well, how do you know it was Captain Macklin? — A. I taken it 
to be him — he had on his saber, and I saw them form the light at the 



63 

gate; there is a light right at the gate, and they were coming — they 
were crossing the road, coining toward the barracks when I saw 
them. 

Q. You conhl see them iiiidcr the light of the gate? Is that the 
way you recognized him? — A. Yes. sir. 

(Excused.) 

Alexander Ash, a witness for the prosecution, was duly sworn, 
and testified as follows : 

Direct-examination by the Judge- Advocate : 

Q. State your name, residence, and present occupation. — A. Alex- 
ander Ash, Kansas City, Mo., laborer. 

Q. Did you ever serve in the Twenty-fifth Infantry as a soldier? — 
A. Yes, sir. 

Q. In what company? — A. Company D. Twenty-fifth Infantry. 

Q. AVas all your service in the Twenty-fifth in this company? — 
A. No, sir. A month or so I was in the Ninth Cavalry. 

Q. Were vou in Conipanv D. Twentv-fifth Infantry, on August 13, 
1900?— A. 1 was, sir. 

Q. Where were you stationed then?— A. I was stationed at Fort 
Brown. Tex. 

Q. Did you mount guard that da}^ ? — A. Yes, sir. 

Q. AAliat relief were vou assigned to? — A. First relief. 

Q. And what post ?— A. No. 4. 

Q. Was Xo. 4 kept up during the daytime? — A. No, sir. 

Q. It was posted at what time and relieved at what time?— A. I 
don't know, sir, just what time it was posted. 

Q. It was posted about retreat, wasn't it, and taken off at reveille? — 
A. Yes, sir; it was posted about that time, as near as I can recollect. 

Q. You were posted on the night of August 13 at about 10.30, were 
you ? — A. Yes, sir. 

Q. Did you hear anything unusual about midnight? — A. Yes. sir. 

Q. What? — A. I heard some shooting about midnight. 

Q. From what direction did the main part of this shooting ap- 
parently come ? — A. It came from the vicinity of the barracks some- 
where. 

Q. Could you hear this shooting plainly? — A. Yes, sir; I could 
hear it plainly. 

Q. And diet you hear any bugle calls? — A. Yes, sir; I heard bugle 
calls. 

Q. When were you relieved from this post? — A. I w^as relieved 
about 2.;>0. 

Q. Were you inspected by the officer of the day at any time you 
were on the post? — A. AVas I inspected by the officer of the day? 
Xo. sir; I was not. 

Q. You were inspected at the guardhouse by him. were you? — 
A. Yes. sir. 

Q. You do not know the distance, do you, from B Company bar- 
racks to your post Xo. 4? — A. Xo, sir; I don't. 

Q. But your post ran where? Describe the route you took.— A. 
My post ran from the connnissary. around the quartei-master's depart- 
ment, and back to the coumiissary, all around, taking in all of the 
qiuirtennaster's building, the storehouses, and connnissary. 



64 

Q. You kept them on which hand? — A. Kept them on my left 
all the time. 

Q. How long did the shooting keep up that you heard? — A. I 
don't know, sir; I couldn't say. 

Q. Did it keep uj) five minutes, ten minutes, or how long? — A. It 
might have kept up that long; I couldn't say whether it kept up 
five, ten, or fifteen minutes. 

Cross-examination by the Accused : 

Q. Ash, do you understand this map here? — A, No, sir; I don't. 

Q. Just come up here and I will see if I can explain it [indicating 
on map]. All this portion in there is the post at Fort Brown. — 
A. Yes, sir. 

Q. Ahd this portion on the other side of what is marked " road " 
is Brownsville? — A. Yes, sir. 

Q. And these are the company barracks running from the river — 
B Company, C Company, D Company, and a vacant set of bar- 
racks? — A. Yes, sir. 

Q. And these are officers' quarters? — A. Yes, sir. 

Q. And here is the guardhouse ? — A. Yes, sir. 

Q. The hospital and post exchange are over here [indicating] — 
not shown here on the map, but olT to the right, as my pointer goes ? — 
A. Yes, sir. 

Q. Now, can you tell from this explanation what was the general 
locality of your post that night — say, with reference to the hospital 
and post exchange? Was it ofi" in that direction [indicating] or 
here toward A. It was off in that direction [indicating]. 

Q. The hosf)ital was to the right of the guardhouse as we look at 
the map? — A. Yes, sir; and the commissary was to the right of that. 

Q. The commissary and the quartermaster's building was to the 
right of that hospital? — A. Yes, sir, 

Q. How long were you on post? — A. From half past 10 to half 
past 2. I was on four hours. 

Q. About how long did it take you to go around your post? — 
A. Well, walking the post slowly, it taken me ten minutes or fifteen 
minutes — something like that — or twenty minutes. 

Q. About ten, fifteen, or twenty minutes? — A. Yes, sir. 

Q. Now, with respect to the buildings there, where was that firing 
that you first heard that night? — A. The first I heard? 

Q. Yes. — A. Well, two shots to the right of me, the first I heard— 
off to the hospital. 

Q. Point it out. — A. Well, the hospital would be to the right of 
the guardhouse; those shots — the first two I heard — seemed to be 
over in that direction from me [indicating a point just off the eastern 
corner of the map] — off back there. 

Q,. Now, with respect to that point you located, was there any road 
that divided the reservation from the town? — A. Yes, sir. 

Q. And you thought that that first shot came from the vicinity of 
the road dividing the reservation from the town? — A. Yes, sir; the 
first two shots I heard. 

Q. What was that district over in that general locality — what was 
it called ? — A. I don't know what it is called. 

Q. Wliat did the soldiers call it?— A. " The firing line." 

Q. " The firing line ? " TA^iat did that mean ? — A. I don't know, 
sir. 



65 

Q. Did it mean " tenderloin if'* — A. I don't know, sir, what it 
meant. I just heard it caUed " the firing line.*" 

Q. AMiat people lived down in that district ^^A. Well, Mexicans, 
and some few colored people, that is about all. 

Q. Did- you see the officer of the day in the vicinity of your post 
after '' taps *' that night? — A. No, sir; I did not. 

Q. You do not know whether he was there or not ? — A. No, sir. 

Excused. 

Sa^il'el Wheeler, a witness for the prosecution, was duly sworn, 
and testified as follows: 

Direct examination by the Judge- Advocate : 

Q. AAliat is your name, residence, and present occupation ? — A. My 
name is Sanniel Wheeler. My residence is 702 Choctaw avenue, El 
Reno, Okla. 

Q. And your occupation is what? — A. I am employed now by the 
El Reno Compress Company. 

Q. ^^'ere you ever a soldier in the United vStates service ( — A. Yes, 
sir. 

Q. For how long a time? — A. About eighteen years and eleven 
months and about twenty-nine days. 

Q. This service was mainly in what regiments or companies? — 
A. I served eight years in the Ninth Cavalry, five years in the 
Tenth Cavalry, and five years eleven months and seven days in the 
Twenty-fifth Infantry. 

Q. In what compan}^ of the Twenty-fifth Infantr}^ did you serve? — 
A. D Company, sir. 

Q. AVere you in D Company' of the Twenty-fifth Infantry on the 
13th of August, 1906?— A. Yes, sir. 

Q. Stationed at what place? — A. Fort Brownsville, Tex. 

Q. Fort Brown, Tex ? — A. Yes, sir ; Fort Brown, Tex. 

Q. You were at that time a noncommissioned officer, were you 
not ? — A. Yes, sir ; I was a corporal in Compam^ D. 

Q, Did you mount guard on the morning of August 13. 1906? — 
A. Yes, sir. 

Q. And you acted as corporal of one of the reliefs, did you not ? — 
A. Yes, sir ; I was corporal of the first relief. 

Q. Did the officer of the day visit the guardhouse at any time on 
the 13th in your pi-esence? — A. Yes, sir. 

Q. And did he inspect the No. 1 of your relief at the guardhouse 
at any time, or do you know ? — A. I won't be certain, sir, that he did; 
but he was there. 

Q. And about " retreat," did he give you anj^ instructions — did the 
officer of the day give j^ou any special instructions? — A. Well, yes, 
sir — that is, shortly after retreat, 

Q. AAHiat were they ? — A. Well, he gave me instructions to take 
my relief and patrol a certain part of the town and to order in all 
men that I seen out and around in this part of the town, and those 
that would not come in that I order, that were not there on my return, 
to bring them — not finding them in the quarters — to bring them in 
and report them immediately to him. 

Q. Did vou seek to ascertain from the officer of the day the cause 



66 

of this order? Did you ever ask him why this was ordered? — A. I 
did, after I had performed this duty and reported to the officer of 
the day, when I came in. That was about 8 o'clock — after I got 
through. 

Q. TVTiat did he tell j^ou was the cause of it ? — A. I asked" the officer 
of the day for permission to speak to him, to find out. I said I 
would like to ask the officer of the day a question. He said, " What 
is it, Corporal ? " I said, " Everything is very peaceable ; the men are 
not drinking — not acting ugly or anything." I said, " ^Vhy is it you 
are so particular about their being in at this hour ? " He said, " Yes, 
that is very true. I have been out myself right behind you, and 
found that you made a good, clean sweep of them. I didn't see any- 
one, and everything seems to be peaceable, but this lady " — Mrs. 
Brown, I think was the name — " had claimed that some of the men of 
the battalion had attempted an assault on her, and for that reason 
they were trying to give them some trouble," and it seems as though 
they were trying to get everybody in to avoid some trouble. Mrs. 
Evans, I think, was the lady— I am not sure — but anyhow, this lady, 
he said, on account of some one attempting an assault on her, they 
were preparing to give the garrison some trouble, or the soldiers. 

Q. Was this your own idea, or was this told to you? — A. No; this 
was told to me by the officer of the day. 

Q. What was the name of this lady? — A. I won't be sare. 

Q. Mrs. Ivens, or Mrs. Evans? — A. I don't know; I might call it 
wrong. It might be either one; I am not sure. 

Q. Was " call to quarters " and " taps " sounded as usual that 
night? — -A. Yes, sir. 

Q. Were an}^ other patrols sent out — other guards — by the officer 
of the day on the same mission as that on wliich yours was sent 
out?-7-A. Yes, sir; tAvo more. 

Q. Two more? — A. Yes, sir. 

Q. Wliat time did the last one come back, about, as near as you 
can remember? — A. I reckon they got back about "call to quarters," 
somewhere along about that time. 

Q. You are not sure about the time? — A. I am not sure, no, sir; 
I was not noticing the time. It taken about an hour, as near as I 
can estimate the time, to go out and return. 

Q. When was the last time the officer of the day visited the guard- 
house, so far as you personally know ? — A. That night or 

Q. That night.— A. At 11 o'clock— well, not at 11 o'clock, but be- 
tween " call to quarters" and 11 o'clock, because he went right from 
there, I think, out in the parade 

Q. To receive the report ? — A. To receive the report ; yes, sir. 

Q. So he was there between 11 o'clock and a quarter to 11, you 
think? — A. Yes, sir. 

Q. And when did you next see the officer of the day? — A. AYell, 
I next saw the officer of the day 

Q. Approximately. — A. Well, that was sometime after the shoot- 
ing, thirty or forty minutes, probably. I was not to say right up 
close to him, but I knew it was him, I knew his voice, and he had a 
lantern and seemed to be establishing some post along the fence, or 
around there. 

Q. You did not see him, however, between " taps " and the time of 
the shooting? — A. No, sir. 



67 

Q. Did anything unusual happen about ini(hii<iht or a littk' after 
midniffht on August 13 ? — A. Yes, sir. 

Q. A^Tiat was this unusual thing that happened? — A. This out- 
rage — this shooting down there — it was something quite unusual. 

Q. You were awake at the time, were you? — A. Yes, sir. 

Q. Were you in the guardhouse? — A. In the guardhouse; yes. sir. 

Q. AAlien you heard the first shots what did you do? — A. I didn't 
do anything, only I just noticed the two shots, and the other shots 
followed up so quickly liehind those I began to stir around and to 
alarm the guard after the first two shots. 

Q. Did you hear the sergeant of the guard give any command at 
that time? — A. Yes. sir. 

Q. A^liat did he call out?— A. He says, ''Outside, guard I ** in a 
very rushing manner — hollered three or four times: hollered to me 
to get them out. 

Q. And the guard turned out, did it? — A. Yes, sir. 

Q. AYhere was the shooting that alarmed the guard apparently 
taking place, Avith reference to B Company barracks? — A. Well, it 
seemed to be over from that part of town called the west — or south 
part of town. 

Q. Well, was it from the part of town in the vicinity of the post? — 
A. Yes, sir. 

Q. And the shooting apparently came from in front or from the 
rear of the line of the barracks? — A. It nnist have come from the rear. 

Q. Of the line of barracks, or not? — A. Yes, sir. It was over in 
that part of town, it was bound to have been; yes, sir. It was not in 
front of the barracks; if it "had been I would have been able to have 
seen just about where it came from. 

Q. And about how long did this shooting keep up, can you give 
us an idea ? — A. Oh, it must have been about fifteen or twenty min- 
utes, estimating the time — lasted about that hmg. 

Q. Did the shooting seem to be done by ]3eople Avho stood in one 
place all the time, or were they moving away from the post? — 
A. They moving, and moving away from the post ; I don't say all, 
but one gun made a very loud report and I noticed every time it shot 
it was getting farther and farther away. 

Q. Was most of the shooting rifle shots or pistol shots? — A. I 
don't know, sir, whether any of it was rifle shooting or not : it was 
mixed up. Some of it sounded kind of sharp and other flat, and 
others something like shotguns — I would have thought at first it was 
shotguns. 

Q. Were there any other unusual sounds made at this time other 
than reports of rifles — Avere there any trumpet calls? — A. Yes. sir. 

Q. Where was the first trumpet call sounded ? — A. Well, I couldn't 
say just Avhere the first call Avas sounded, but I think it was sounded 
at the guardhouse; I don't know just where it Avas. 

Q. And Avas it taken up aj^parently by the other trumpeters in the 
other barracks or in front of the barracks^ — A. Yes, sir. It was 
either taken up by those down there or by those up this Avay, I don't 
knoAv Avhich. 

Q. HoAv long Avere the trumpeters sounding the alarm altogether 
do you suppose — hoAv long did they keep it up ? — A. Oh, probably a 
couple of minutes. 

Q. Soon after the sergeant of the guai-d had formed the guard in 



68 

front of the guardhouse did he give orders to any member of the 
guard to go and find anyone ? — A. Yes, sir. 

Q. Did you hear him give this order to any member of the 
guard ? If so, to whom did he give the order and what did he direct 
him to do? State just how the thing occurred. — A. Why, during 
the formation, or forming of the guard, we had a call from Xo. 2. 
As soon as the guard was formed he sent Corporal Burnett 

Q. Who sent him? — A. The sergeant of the guard sent Corporal 
Burnett and two privates to this call 

Q. That is, to post No. 2. — A. To post No. 2; and about — along 
about the same time he sent a man to the officer of the day's quarters. 

Q. '^\niat was this man's name?— A. Rogers. 

Q. Of what company? — A. Private Rogers, of C Company. 

Q. Did the sergeant of the guard state why he sent this man in- 
stead of some other man, or did he first start to send somebody else 
and then change it and send Rogers? — A. Why, yes, sir; he first 
started to send a man — I think the man said he didn't know where 
the officer of the day lived, and he had some C Company uien there 
and Rogers w^as near him, and he asked Rogers if he didn't know 
where he lived. Rogers said yes, sir, he knew where the captain 
lived, and the sergeant said, " All right. Go up and notify the cap- 
tain of this alarm." 

Q. That w^as Captain Macklin? — A. Yes, sir; the officer of the day. 
He called to him because it was his captain; he would know then; 
he knew exactly where to go — going to his captain's quarters. 

Q. And did Rogers at once start off on this errand ? — A. Yes, sir. 

Q. How long was he gone, do you suppose, or to the best of your 
recollection? — A. I don't know just how long he was gone, but I 
think it must have taken him eight or ten minutes to have gone up 
there and come back, if he had stepped lively — if he had stepped out 
in a good lively manner, as he should have. 

Q. Was the shooting going on when he left? — A. "When he left; 
yes, sir. 

Q. Had it about ceased when he got back, or was it still going 
on? — A. I think it had about ceased by the time he had gotten back. 

Q. You do not know whether it was over or not? — A. No, sir. 

Q. Were you there when Private Rogers returned and reported 
to the sergeant of the guard ? — A. Yes, sir. 

Q. Did you hear what he said, what conversation took place be- 
tween the sergeant of the guard and this man Rogers? — A. AVhy, 
there was not much conversation. They w^ere about as far from me 
as up to that stage, or probably the wall, and I heard him say. Did 
he wake him up 

Associate Counsel for the Accused. May it please the court. 
I want to call attention to the fact that that is not relevant testi- 
mony, but I do not wish to object to it. 

Q. A^Hien Private Rogers came back, he was halted by the sentinel 
on post No. 1 or not? — A. I don't know whether he was halted by 
just No. 1 or not, because w^e had sentinels all along there; but he 
was halted and advanced by the sergeant of the guard. 

Q. A^Tiy didn't you advance him? — A. Why, the sergeant of the 
guard was right there and said, " Never mind. Corporal, I know who 
it is," and he advanced him himself. He wanted to get the informa- 
tion, I suppose, as soon as possible. 



()9 

Q. So you were right there when this inaii IJogers came in and 
reported to the sergeant of the guard? — A. Yes. sir; within about 
30 or 40 feet of him. 

Q. AVell, I. mean, you were within hearing distance? — A. Yes, sir. 

Q. Do you know where the officer of the day slept that night? — 
A. No, sir. 

Q. AVhat was the name of the sergeant of the guard? — A. Ser- 
geant Reid. 

Q. Of what company? — A. Company B, sir. 

Q. Do you know where this Sergeant Reid is now ? — A. No, sir. 

Cross-examination by the Accused: 

Q. Corporal AAlieeler A. Yes, sir. 

Q. You are a pretty old soldier, aren't you? — A. Yes, sir — have 
seen quite a bit of service, sir. 

Q. You served some little while with Captain Macklin? — A. Yes, 
sir. 

Q. Did he have, as far as you know, any confidence in you as a 
noncommissioned officer? — A. Why, I always thought he had, sir; 
yes, sir. 

Q. He sent out certain patrols, vou testified, on that night of the 
13th of August?— A. Yes, sir. 

Q. Were those patrols that he sent out selected men? For in- 
stance, was Ash, the man that w^as sent down to the ferry, was he a 
selected man, selected by the officer of the day particularly? — A. Yes, 
sir: Ash was selected particularly by the officer of the day. He had 
me to step my relief out to one side and had about recognized all of 
us, and he said, " Oh. yes; this is Corporal \\lieeler," and he said, " I 
want you to take this patrol up to the tenderloin district." 

Q. Why did he select Ash, Corporal? — A. Why did he select Ash? 

Q. Yes. — A. I suppose he selected him because he was a quiet, 
peaceable man. 

Q. And knew his business? — A. And knew his business. A quiet, 
responsible man, who would carry out what he was told to do. 

Q. And you felt that he had that same confidence in you, did 
you ? — A. Yes, sir ; I did ; from the way he spoke. 

Q. Did he make any patrols himself there, in addition to the 
patrols of the enlisted men he sent out? — A. I think he must have. 

Q. And after all these duties had been completed, and, feeling that 
it had been satisfactorily completed, relying upon the fact that you 
were an old soldier and you had some confidence in Captain Macklin 
and he an equal amount of confidence in you. you had this conversa- 
tion relative to the cause of the patrols being sent out: is that the 
idea ? — A. Yes, sir. 

Q. It Avas not a question of any order A. As a duty or anything 

of that sort; no, sir: it was not. 

Q. It was simply in that capacity? — A, Yes. sir. 

Q. And the talk you had with Captain Macklin was a very free 
and open one? — A. Yes, sir. He was standing at one side to receive 
the reports of the noncommissioned officers after the patrol, and I re- 
ported to him and asked him for permission to ask him this question, 
and there was no harm about it. 

Q. There was no reservation about his manner, was there? He 
gave you that permission fully and freely, did he ? — A. Yes, sir. 



70 

Q. Corporal, did you report to the officer of the day there, in con- 
nection with that conversation, any information you had about it? — 
A. ^\liy, I can not just understand the question. 

Q. Well, I think I can clear your mind on that. As. I understand 
your direct testimony, you said you had a conversation with Captain 
Macklin, which was occasioned by your asking what was the purpose 
of those patrols having gone into town, and he said that a Mrs. Evans 
had reported to the commanding officer that she had been assaulted 
by a soldier of the command, and that in consequence of that report 
the commanding officer had directed the officer of the day to send 
patrols to take all the men back into the barracks, in order to avoid 
any possibility of those men getting into any trouble in Browns- 
ville. — A. Yes, sir. 

Q. Now, did you go on to explain to the officer of the day any 
matter that had been within your knowledge with respect to that 
assault? — A. Yes, sir; I understand now. Then I explained to him. 
1 says, " Oh, yes; " and also he says that she reports that they are 
continuously annoyed by the soldiers, you know\ Then I says to the 
officer of the day, " ^^Tiy, she couldn't help being annoyed by the 
soldiers, if annoyed at all, because she is living right here all amongst 
them." He said, "Is that so? "W^iereabouts? " Then I pointed 
out to him the house, and I said, " I understand three families live 
in there." He said he didn't know it. and then I went on and said, 
" I think there is a mistake about Mrs. Evans or anybody else being 
annoyed.'' He said, " Do you know these other people living in that 
house? " I told him I did not know, but would be able to find out, 
because I was well acquainted with a girl in service there. 

Q. Who was that girl. Corporal ? — A, Her name was Viola Taylor. 

Q. "VMiere is she living now? — A. I don't know. I left her in 
Brownsville. 

Q. Is she living down near Laredo? — A. I don't know. I haven't 
heard from the girl since I left there. 

Q. Is she the daughter of a soldier? — A. Of a retired soldier, B 
Taylor, of the Ninth" Cavalry. 

Q. Go on. — A. He said, " I wish 3^ou would try to find out." I 
said, " Very well." And as soon as I got a few spare seconds I re- 
minded the sergeant of it and told him I wanted to step over and 
find it out. He said all right^ — because I was anxious to have the 
matter investigated and have that sort of trouble let out — and so I 
stepped over and saw the young mistress and asked her if she was 
still in service there, she said yes 

The Judge-Advocate. So far as concerns any report the witness 
made to Captain Macklin which may have been the basis for some of 
Captain Macklin's actions, there is of course no objection to this wit- 
ness stating just what he reported to Captain Macldin; but so far as 
his stating to the court here just what he did and Avhat they told him, 
that, it seems to me, is inadmissible on the ground that it is absolutely 
hearsay and can not come under the head of res gestae at all. But if 
the witness will merely state, and if counsel will ask him to state, 
what he reported to Captain Macklin in consequence of the trip made 
by him, there will be no objection at all on the part of the prosecution. 

Associate Counsel for the Accused. May it please the court, in 
answer to the objection of the judge-advocate, at the risk of being a 
little roundabout and somewhat tiresome, I asked this particular 



witness on the stand a number of questions, the sole purpose of whicli 
was to show the nature of the convfU'sation he was having with the 
officer of the (hiy on that particular night, and I wanted to see from 
the witness what character of conversation it Avas — that it was not 
any private report that was matle to him, but was opened up by a 
question that was asked by the officer of the day. and as the result of 
that particular question all this matter that the witness is now testi- 
fying to came within the personal knowledge of the officer of the 
day and affecting his mental attitude with respect to the different 
charges upon which he is being tried. 

The Judge- Advocate. May it please the court, so far as the wit- 
ness continuing his answer and stating what he was told by any one 
up in this tenderloin district, or by ^Mrs. Evans or the people in that 
vicinity. I object to that as hearsay testimony. But if he wants — if 
coimsei will change the form of the question, and ask him what he 
reported to the officer of the day, and if the Avitness will state as near 
as he can remember the substance of what he told the officer of the 
day, there is absolutely no objection to it ; but there is a decided 
objection to the witness stating here to the court something that may 
be entirely different from what he told the officer of the day. or that 
may go considerably more into detail or less in detail: I do not know 
and have no means of telling, now, but if the corporal will just state 
what he stated to Captain Macklin there will be no objection. 

Counsel for the Accused. The statement made in the form of 
official report takes it out of hearsay, and there can be no objection. 
But if you were attempting, to establish before this court some fact, 
and were attempting to establish that fact by means of hearsay testi- 
mony, that testimony would be clearly inadmissible. But, may it 
please the court. T am attempting to establish no fact through the 
means of this hearsay testimony given by this w'itness. The sole 
purpose of that hearsay testimony was to establish what was the 
mental attitude of the officer of the day on that night — the night that 
is covered by this specification upon which he is being tried, and 
how his mental attitude affected his performance of his duty as 
officer of the day. which put him into a condition to accept seriously 
or not the report Avhich the judge-advocate has made the basis of his 
prosecution in this case. This conversation being testified to as 
haA'ing been had with the accused does not establish a single fact in 
evidence, and it is competent — the most competent testimony that 
could appear before this court. 

The Court. I would like to ask the counsel for accused if this 
witness will later testify that he reported these things he related to 
the officer of the day? 

Associate Coinsel for the Accused. May it please the court, the 
cross-examination of this witness is intended simply to cover a -ques- 
tion brought out by the ])ro>ecution in this case, and at the present 
tim^ Ave haA-e no knoAvledge as to Avhether or not Ave shall introduce 
this Avitness as a Avitness of our OAvn to establish the couA-ersation in 
this case. This is simply to clear up a matter brought out by the 
prosecution. 

The Judge- Advocate. As I stated before, the prosecution has no 
objection to the A\'itness stating just Avhat he told Cai)tain Macklin, 
or as near as he can remember Avhat he told him — there is absolutely 
no objection to that, because that undoubtedly had something to do. 



72 

with the formation of Captain Macklin's ideas. But as to the wit- 
ness coming up liere and stating:, " I did so and so, and so and so 
told me such a thing,'' the prosecution does object to that. 

The Court. I woukl lil^e to ask whether the objection is meant to 
apply to the answer already recorded? 

The Judge-Advocate. I have no objection to the answer already re- 
corded. But I do object to the witness stating what he had learned 
from other people. 

The Court. On the ground of what ? 

The Judge- Advocate. On the ground that it is absolutely hearsay 
evidence, and it has not been brought out that he reported those facts 
in that way to the officer of the day. It is merely an objection to the 
form of the questioning. We object because of the fact that it has not 
been shown that what he is now telling the court was, as near as he 
can recollect it, just what he told the officer of the day and which 
formed a basis for the officer of the day's attitude on the question. 

The accused, his counsels, the reporter, and judge-advocate with- 
drew and the court was closed, and on being opened the president 
announced as follows: 

The objection of the judge-advocate is not sustained. The witness will con- 
tinue his answer. 

The question and the last answer of the witness were reread by the 
reporter. Whereupon the witness continued his answer as follows : 

A, So I asked her for the names of the families who lived in this 
house; she verbally spoke them out to me, and for fear I would forget 
them — I wanted to have them correct — I asked her to write them 
down for me, so she got up and got a piece of paper and a pencil and 
did so; and I asked her^ — ^I was looking for this information — I ex- 
plained it to her ; she said, " Oh, yes ; my mistress has spoken to me 
about it,'' and she said, " It will be nice, I hope you do get it straight- 
ened out," and she handed me the piece of paper and I returned to 
the guardhouse with those nam^es and waited for the officer of the day 
to come. He came there to meet the next patrol that came in, and 
just as soon as he met the patrol and they reported to him, I stepped 
up and handed him this piece of paper. Mrs. Evans's name was the 
first one on the paper, and he said, '' This is the one that inclined to 
make us trouble, and I am very glad you got this. Corporal, and I will 
report this to the commanding officer, and we will investigate this 
right away." He says, " I don't think anybody wall disturb Mrs. 
Evans or anybody else. There is not an officer that believes a word of 
this." And that was about all the conversation between us. 

Q. From your investigation. Corporal, and the report which you 
made to the officer of the day, what impression did you get from Viola 
Taylor as to the truth of this assault that was alleged to have been 
made? 

The Judge- Advocate. I object to that question as calling purely 
for a matter of opinion. 

(The question was withdrawn.) 

Q. Did you make any report to the officer of the day, the result, 
as it appeared to you, of your investigation as to the truth of this 
alleged assault upon Mrs. Evans? Do you understand me. Corpo- 
ral? — A. Well, now% I think I do. That is, you want to understand 
what Miss Taylor said to me about it ? 



73 

Q. I think you have told that brieflY — not briefly, either — but 
what I want you to do is to tell me what you told the officer of the 
day as to the result of this conversation with Viola Taylor — the result 
with respect to the truth of that report of the alleged assault upon 
Mrs. Evans? Do you understand nie now? — A. Yes, sir; I think so. 
I stated to the officer of the day that Miss Taylor told me that her 
madam told her that she did not think it was — said Mrs. Evans was 
kind of flighty, anyhow, and might have bumped her head against a 
post or the porch, or. something of that sort, and thought some one 
grabbed her. She didn't tell a word of it. They were staying right 
in the house and didn't hear any alarm from her. As I understand, 
that is the question you want to get at? 

Q. Yes. And that was Mrs. Byron, was it, she said was her 
madam? — A. I don't know whether that was the name or not. 

Q. She lived in the same house? — A. She lived in the same house 
with Mrs. Evans; yes, sir. 

Q. (^orporal, you told the officer of the day the location of this 
house, didn't you? — A. Yes, sir; I tried to point it out to him. 

Q. And what was that location? In what district of the. town was 
tluit house located? — A. Right near the — the house set right between 
the street that ran along and divided the ])ost from the town and the 
next street. I understood that was the tenderloin district out over 
there- — whatever the tenderloin district might be — that was the loca- 
tion of the building. 

Q. Corporal, who was the nuisician of the guard that night? — 
A. Musician Howard Robinson of D Company. 

Q. Did he know the location of Captain Macklin's quarters? — A. I 
couldn't say that he did, but he should. As a rule, all the musicians 
knew whei-e the officers lived at after they had been a while at the 
post. 

Q. Did you hear any instructions given by the officer of the da}'^ 
about waking him for reveille? — A. No, sir; I did not hear the 
instructions. 

Q. That was the usual practice, wasn't it? — A. Yes, sir. Always, 
as a rule, when the officer makes about his last round to the guard- 
house he leaves word with the musician to Avake him at a certain 
time — to blow " first call " and then go to his quarters and Avake 
him up. 

Q. AVhat was the time at Avhich you made that last report to the 
officer of the day about this conversation — about Avhat time of night 
was it? — A. That was about 10 o'clock. 

Q. The next time that Captain Macklin was down at the guard- 
house Avas when? You stated it in your direct testimony. — A. About 
a quarter of 11 ; something like that. 

Q. You spoke of Corporal "" Burnett." That Avas Corpl. Ray Bur- 
dett, wasn't it? — A. Burdett; yes, sir: I called him Burnett. 

Questions by the Court: 

Q. You stated that Private Rogers came back and reported to the 
sergeant of the guard that he had waked up Captain Macklin? — 
A. Yes, sir. 

Q. Did he state anything else; is that all he said? — A. I never 
heard any more conversation ; I think that is about all he said. The 
sergeant of the guard asked him did he wake up the officer of the 
day ; he said " yes, sir," and came on back to the guard. 



Q. Was that the man's name, Rogers — Private Rogers? — A. Yes. 
sir; that was his name. 

Q. What time was that? — A. Well, I guess at that time it must 
have been something like fifteen or twenty minutes to 1 ; I didn't 
take the time, but it must have been about that time. 

Q. AVlio was the sergeant of the guard? — A. Sergeant Reid, sir, 
of Company B, Twenty-fifth. 

Q. Did the sergeant send this man down there shortly after the 
guard was formed? — A. Yes, sir. 

Q. About how long was he gone? — A. I should think it must have 
taken him about eight or ten minutes, if he hurried up — had he went 
down like he should have; in that case it wouldn't have taken him 
over eight or ten minutes. 

Q. Was the guard formed soon after the shots were fired and soon 
after the trumpets blew? — A. Well, we formed the guard during the 
shooting. The guard was formed before the trumpeting. 

Q. About what time was the shooting ? — A. About eighteen minutes 
past 12 o'clock, sir. 

Redirect examination by the Judge-Advocate : 

Q. This shooting kept up about how long did you state? — A. I 
think about fifteen or twenty minutes. 

Q. And Private Rogers was sent away in the early part of the 
shooting, wasn't he? — A. Yes, sir. 

Q. Immediately after the guard was formed and immediately after 
the "call to arms" was sounded, wasn't it, or before? — A. Well, I 
guess right after the " call to arms '' had been sounded ; it was all did 
in a very short space of time. 

Q. You are not absolutely certain as to whether the " call to arms " 
was sounded and then he went right afterwards or as to whether he 
went and then the "call to arms" came right afterwards? — A. Oh, 
I know he didn't go before ; that was the first thing, the call to the 
guard, and having the "call to arms" sounded was the first thing; 
he didn't go until Ave got this first call from Xo. 2 ])Ost. 

Q. They sent Corporal Burdett and two privates up there, and at 
the same time sent a man to the officer of the day's quarters? So 
they started this man off to the officer of the day's quarters very soon 
after the call from No. 2 post was heard ?■ — A. Yes. sir. 

Q. By whose order was the " call to arms " sounded, do you know ?— 
A. I do not, sir. 

(Excused.) 

The court then, at 12.30 o'clock p. m., adjourned to meet at 9 
o'clock a. m., April 18. 1907. 

Roger S. Fitch, 
First Lieutenant, First Cavalry, 

Judge- A dvocate. 



Headquarters Department or Texas, 

San Antonio, Tex., April 18, 1907. 
The court met pursuant to adjournment at 10 o'clock a. m. 
Present: All the members of the court and the judge-advocate. 
The accused, his counsels, and the reporter were also present. 
The reading of the proceedings of April 17 was dispensed with. 



75 

The judge-advocate addressed the court as follows: 

Before introdueiiii,' the next witness, I wisli to state that it was shown hy 
the testimony of Lieutenant (irier in the Penrose eourt-niartial, and hiter iii 
this court martial, that he met Ac-tins First Serjrt. Sanuiel \A'. Ilarley, of C 
Company, while he. Lieutenant (irier, was on his way to the company quarters, 
and that this Sergeant Harley was apparently going toward Captain Macklin's 
quarters and so told Lieutenant Grier, and I merely wish to call this witness 
now to clear up that point. 

Samuel W. Harley, a witness for the prosecution, was duly sworn 
and testified as follows : 

Direct examination by the Judge- Advocate : 

Q. A^Tiat is your name, present occupation, and residence? — A. My 
name is Samuel W. Harley : Harrisburg. Pa. ; I am a teamster. 

Q. AVere you ever in the United States Army? — A. Yes, sir. 

Q. How many years did you serve as a soldier? — A. Lacking 
fourteen days of sixteen years. 

Q. In what company and regiment were vou, if any, during the 
month of August, 190G?— A. Company C, Twenty-fifth Infantry. 

Q. A'Mio was in command of that company at that time? — A. Cap- 
tain Macklin. 

Q. Is he the accused in this case?— A. Yes, sir. 

Q. On the night of August 13, 1906, was there any shooting in the 
vicinity of Fort Brown ? — A. Yes. sir. 

Q. Did you, after that shooting began, leave the company barracks 
and start for the officers' quarters? — -A. Yes, sir. 

Q. With what purpose? — A. I was looking for my company com- 
mander to find out what steps to take in regard to the company — as 
I woke up and did not hear " call to arms." 

Q. Did you meet anyone wdiile you were crossing the parade 
ground? — A. Yes. sir; I met Lieutenant Grier I guess about three- 
quarters of the way across. 

Q. And did he halt you and speak to you? — A. Yes, sir. 

Q. What did he say? — A. He says, "Sergeant, where are you 
going ? " 

Q. AAliat did you say ? — -A. I told him I was looking for my com- 
panj commander; that we were being fired on; and he says, " Where 
is he at," and, waking up from sleep, I told him I didn't know ; and 
he says. " Well, go and fall the company in under arms ; I will take 
charge." 

Q. Are you sure that Lieutenant Grier told you that he would 
take charge of the company ? — A. Yes, sir. 

Q. Are you sure that it happened at that time and not later on 
that he told you he had been directed to take command of the com- 
pany ? — A. He told me at that time. He saj'^s, " I will take charge." 
Told me to fall in. 

Q. He did not. however, order you not to go for Captain Macklin. 
did he? — A. No, sir. 

Q. Did you continue on toward Captain Macklin's quarters or 
not? — A. Xo, sir; I returned back in a double time, or a run. back to 
the company. 

Q. So, did you, on any occasion that night, go to Captain Mack- 
lin's quarters? — A. Xo, sir. 



76 

Associate counsel for the accused here addressed the court, as 
follows : 

May it please the court : We thank the judge-advocate for the introduction 
of this particular testimony to clear up that point as to whether or not Sergeant 
Harley did visit Captain Macklin's quarters. We don't wish to cross-examine 
him on that point. There is one question I would like to ask him. 

Cross-examination by the Accused : 

Q. Sergeant, v^-here did you sleep in your company barracks that 
night? — A. In rear of the orderly room; room of the first sergeant. 

Q. You say you did not hear " call to arms " that night ? — A. No, 
sir. 

Q. So you were not awakened by it? — A. No, sir. 

Examination by the Court: 

Q. 'Wliat did waken you that night? — A. The firing woke me, sir. 
Redirect examination by the Judge- Advocate : 

Q. Had you been drinking on the night of August 13 at all. or 
were you very tired? — A: I was very tired. 

Q. Had 3^ou been drinking at all during the day? — A. Well, yes, 
sir; I drinked a couple of glasses of beer that evening just about 
retreat, right after retreat. 

Q. Whereabouts did you drink this? — A. Down near the colored 
saloon. 

Q. At Allison's saloon? — A. Yes, sir. 

Q. Are you sure you didn't have three or four glasses of beer? — 
A. No, sir ; I didn't have three or four. It's very little I drink, any- 
way ; never did drink any to amount to anything. 

Q. Had you been on a practice march that day, the 13th? — A. I 
don't remember; I don't think we were. 

Q. But you were very tired that night, were you? — A. Yes, sir. 

Q. What time did you go to bed? — A. I Avent to bed, I think, be- 
tween 9 and 10 o'clock; I am not sure, I didn't keep any track of 
time. 

Reexamination by the Court: 

Q. Was there any call sounded after you woke up that night? 
Any call to arms sounded after you woke up that night ? — A. No, sir. 

Q. Didn't hear any call to arms at all then that night? — A. No, 
sir ; didn't hear any at all. 

Q. After you woke up did you hear any trumpets sound at all that 
night? — A. No, sir. 

Q. You say you were awakened by firing? — A. Yes, sir. 

Q. What firing? — A. Well, the firing of guns. 

Q. Firing of guns? — A. Yes, sir. 

Q. And that the call to arms had already sounded and you didn't 
hear that ? — -A. No. sir ; I didn't hear that. 

Q. Did you hear the firing after the call to arms had sounded? 
Is that it ? — A. Yes, sir. 

Q. About how much firing was there that wakened you, and in 
what apparent locality was it? — A. Well, the firing — I don't know 
how many shots there were; I couldn't say, but it sounded to me, 
though, like six-shooters and Winchesters firing, because when I woke 
up that's the first thing I listened to see whether I could hear any of 



77 

our guns or not, and I can tell the difference between our gun and 
any other, the same as the operator can tell the sound on the 



Q. Sergeant, you are. sure after you Avakened there were no more 
trumpet calls in the way of alarm sounded in the garrison? — A. No, 
sir ; not as I know of. 

Q. But still there was sufficient firing going on to arouse you from 
sleep? — A. Yes, sir. 

Re-direct examination by the Judge- Advocate : 

Q. Sergeant Harley, were you imdressed at the time? — A. Yes, sir. 

Q. Did you, after 3^ou were wakened, put on your clothes? — 
A. Yes, sir. 

Q. Did you get any arms? — A. Xo, sir. 

Q. Before leaving the barracks? — A. No, sir. 

Q. And then you left the barracks as soon as yoti had gotten 
dressed and started across the parade ground? — A. Yes, sir. 

Q. And met Lieutenant Grier about three-quarters of the way 
over? — A. Yes, sir. 

Q. How long do you suppose it took you to get dressed? You had 
no light in the quarters did you? — A. No, sir; but I kept my clothes 
Avhere I could get at them, and the clothes I put on I suppose I could 
put on in about thirty-five seconds, 'cause I just slipped on my 
shoes — didn't lace them up — and put on my trousers and grabbed my 
jacket and hat on the run, and I got out very quick. What clothes 
I put on I could put on in thirty seconds and get out, and probably 
if I had time, maybe less, but I didn't have time. I know the 
clothes I put on I could put, on in thirty seconds. 

Recross-examination by the Accused : 

Q. Who was noncommissioned officer in charge of quarters of C 
Company that night? — A. Sergeant Brawner. 

Q. Did he come down to see you ? — A. Yes, sir ; he come dow^n and 
when I ran out he says, " Sergeant, shall I unlock the gun racks?" 
and I told him to wait for orders. 

Q. Did he come down before 3'ou had gotten up out of bed ? — 
A. Well, he come doAvn just about the time I ran out. 

Q. He didn't arouse 3'ou, though? — A. No, sir. 

Q. You think it was the firing that actualh' aroused you — not any 
man in the company? — A. The firing that actually aroused me I 
am pretty sure. 

Reexamination by the Court : 

Q. About how many shots did j'ou hear fired after you woke up? — 
A. T don't know, sir; I cotddn't say. 

Q. About how long did it continue? — A, Well. I couldn't say that, 
because that's something I didn't pay much attention to and I 
couldn't make any statement on it whatever. I don't think, at the time, 
because when a person wakes up out of a sleep and through excite, 
why. time is liable to be shorter or longer a good deal. 

Q. AYas firing going on when j'^ou met Lieutenant Grier? — A. Yes, 
sir. 

Q. Was it going on when you got back to your company? — A. Yes, 
sir; just when I got back; yes, sir. 

1643—07 M 6 



78 

Redirect examination by the Judge- Advocate : 
Q. Sergeant, when you met Lieutenant Grier, was there consider- 
able firing going on, or just scattered shots? — A. Well, it seemed to 
be kind of scattered. 

Q. And when you went back to the company, after you had met 
Lieutenant Grier, you say the firing was still going on; was there 
any considerable volume or scattered shots? — A. Well, it was about 
the same. 

Q. Did it sound any nearer or any farther away than the firing 
you first heard? The firing that woke you up. — A. Well, it seemed 
to be farther awa}'. 

Charles Hairstox, a witness for the prosecution, was duly sworn 
and testified as follows : 

Direct examination by the Judge- Advocate : 

Q. Please state jouv name, residence, and present occupation. — 
A. Charles Hairston, Xo. 410 First street northwest, Washington, 
D. C. Occupation, janitor. 

Q. Do you know the accused? If so, state who he is.— A. Captain 
Macklin. 

Q. Were you ever a soldier? — A. Yes, sir. 

Q. In what company and regiment have you served? — A. Com- 
pany B, of the Twenty-fifth Infantry. 

Q. TVliat rank did you hold ? — A. Private. 

Q. Were you a private in Company B, Twenty-fifth Infantry, on 
August 13, 1906 ?— A. Yes, sir. 

Q. AYhere were vou stationed at that time? — A. Fort Brown, 
Tex. 

Q. Did you go on guard on the morning of August 13? — A. Yes, 
sir. 

Q. To what relief were you assigned? — A. First relief. 

Q. And to what post ?— A. No. 3. 

Q. Was No. 3 a post that was kept up during the clay as well as 
during the night ? — A. Yes, sir. 

Q. Where clid it extend during the day ? — A. Extended during the 
day in rear of the officers' quarters, and after retreat in the evening 
in rear and front. 

Q. So that between retreat and reveille you walked entirely around 
the officers' line, keeping them A. On the left. 

Q. "N^n^io mounted guard as officer of the day at the same time you 
went on guard? — A. Captain Macklin. 

Q. Did he inspect you at any time when you were on post? — 
A. Yes, sir; inspected me between half past 4: and 5 o'clock in the 
evening. 

Q. And did he inspect you again when you went on post, about 
10.30?— A. No, sir. 

Q. You were on post, or supposed to be on post, from 10.30 • 

A. Until 12.30. 

Q. At or about midnight August 13, you were on post, were you 
not? — A. Yes, sir; I was on post. 

Q. Did you hear any unusual sounds about this time, coming from 
the direction of town ? — A. No, sir. 



79 

Q. Did you hear any sounds of shooting at this time, coming from 
the direction of town? — A. Yes, sir. 

Q. What did you do? — A. At first when the shooting come up I 
had just got toward the corner of Major Penrose's quarters, and he 
rushed out. At the time he asked me what was the matter and I told 
him I think they were firing upon the soldiers' quarters, and he said, 
" Have the trumpeter of the guard sound call to arms," and so I did 
give the order to No. 1, and about that time he began to sound call 
to arms, and I ran across from his quarters to the company. 

Q. To what company? — A. Company B, and after the company 
was formed and the roll Avas called I come back to my post, and then 
after I went back to my post Sergeant Reid, sergeant of the guard, 
sent word by Private De Saussure to have me call Captain Macklin at 
once, and I went to the door and knocked on the door, rapped some- 
thing like three or four times, and he answered. 

Q. What did he say? — A. lie said, "All right," just in that tone, 
and I told him the sergeant of the guard wanted him at the guard- 
house at once, and he says, "All right," so I turned in and walked 
down the walk for a few steps. 

Q. Down which way? — A. Back. Turned to the right. 

Q. Toward Major Penrose's quarters? — A. Yes; I didn't walk 
around the post any more. 

Q. After this shooting you continued merely to walk up and 
down in front of the officers' quarters, and did not longer continue to 
go around them? — A. No, sir. 

Q. So, after you w^alked back toward Major Penrose's quarters, or 
in that direction, Avhat did you do? — A. Went back and called him 
again. 

Q. How did you call him this time? — -A. Called him again, just 
in the same tone, and told him they wanted him at the guardhouse 
at once, and he said " all right," again. 

Q. Did you knock this time? — A. Yes, sir; knocked the same way. 

Q. Then what did you do? — A. Turned and went off again for a 
few minutes, and he didn't seem to come out, and I went back again 
and said the same thing. 

Q. How did you call him this time? — A. Just in the same way I 
did the first time. 

Q. Did you knock? — A. Yes, sir. 

Q. With your rifle or your hand? — A. No, sir; with my hand. 

Q. And did he replv ? — A. Yes, sir. 

Q. A^^iat did he say ?— A. He says, "All right ; T will get up right 
now." That's the last word. 

Q. Then what did you do? — A. I left; then about that time Cor- 
poral Burdett met me in about 40 or 50 feet of the house and asked 
me if I could get Captain Macklin up. I told him no; and he said, 
" Come; I Avill get him up." So he went and he rapped on the door 
and he told Captain Macklin then the whole results and what was the 
matter. 

Q. A^liat did he say? — A. He told Captain Macklin to get up : they 
were shooting on the quarters; they wanted him at once. So he got- 
ten up and he come out of the house immediately ; I guess a minute 
after he told him. 

Q. I hand a'ou this photograph and ask you if you recognize it. 



80 

If so, as what [handing witness picture, marked, for convenience, 
No. 3, already in evidence and hereto appended and marked " 3 "] ? — 
A. Officers' quarters. 

Q. Whereabouts — what post? — A. At Fort Brown, Tex. 

Q. A^niiich end of the officers' quarters is it ? — A. This is the west 
end, next to the river. 

Q. ^^riiat is that small building on the right? — A. Quartermaster 
clerk's residence. 

Q. Can you see in the picture the building that you believed at 
the time was occupied by Captain Macklin? — A. Yes, sir; this build- 
ing; on this side of it were the side I was thinking he were living 
[indicating the first set of officers' quarters, in the center of the 
picture]. 

Q. You believed on the night of August 13, 1906, that Captain 
Macklin lived in that building shown in the center of that photograph, 
but in the side toward the west — toward the river ? — A. Yes, sir ; on 
the west end. 

Q. Have j'ou since found out differently? — A. Yes, sir. 

Q. "\Aliich side ? — A. Left. On the east" side. 

Q. So that on the night of August 13 you were under the impres- 
sion that Captain Macklin lived on the west side of the house shown 
in that picture? — A. Yes, sir. 

Q. And the number of that house is what? — -A. No. 12, sir. 

Q. Was that the house you went to to call him? — A. Yes, sir. 

Q. On the night of August 13 ?— A. Yes, sir. 

Q. Was it at that house that' Corporal Burdett knocked ? — A. Yes, 
sir. 

Q. Do you know how Corporal Burdett happened to be there; 
what duty he was on when you met him? — A. Yes, sir; he was sent 
over, I think, by Major Penrose's order. 

Q. A^liat for? — A. Guardian of the ladies — officers' wives. 

Q. These ladies were in what officer's quarters? — A. I am not sure. 
I don't know whether they were in Lieutenant Grier's quarters or 
Captain Lyon's. One of the two. I don't remember. 

Q. Was Private De Saussure one of the men with Corporal Bur- 
dett on this duty ? — A. Yes, sir. 

Q. Are you able to remember now the name of the other man, or 
state who you think he was ? — A. No, sir. I don't know exactl}^ who 
they were; seemed to me it was Private Rogers or Battle; I don't 
remember ; one of those two men. 

Q. You don't remember, however, for certain? — A. No, sir. 

Q. In this house — this double house. No. 11 and 12 — was there any 
light at all? — A. Yes, sir; it was a dim light; seemed to me a light 
were turned very low. 

Q. Which side of the house was it on — on the west or east side ? — 
A. On the west side. 

Q. Was this a very dim light or not? — A. Yes, sir; a very dim 
light, sir. 

Q. Are you sure that it was from this house, either 11 or 12, that 
Captain Macklin came when Corporal Burdett finally called him? — 
A. Yes, sir; he came out one of the doors, but I was such a distance 
from the house I could not tell exactly which house he came from. 
I was about 40 feet — about 50 feet, I guess — from the door when he 
came out. 



81 

Q. So you left Corporal Burdett before Captain Macklin came 
out? — A. No, sir; Corporal Burdett left me and went off down the 
walk. 

Q. You were which way from Captain Macklin's house at the time 
Corporal Burdett was knocking at the door and at the time Captain 
Macklin came out, a minute or so later? AVere you to the east of 
Captain Macklin's house or to the west?-^A. I was to the east. 

Q. You had gone back walking your post? — A. Yes, sir. 

Q. Are you very familiar with maps? — A. Yes, sir; I think I 
understand that one. 

Q. Did you ever see a map like that before? — A. Yes, sir. 

Q. AYhereabouts ? — A. In "Washington. 

Q. "\Anien you testified before the Senate committee? — A. Yes, sir; 
but I didn't understand that one as well as I does that one. 

Q. Was it the same kind of a map as that? — A. Yes, sir; it was 
as large, but different drawing. 

Q. (Explaining map to witness.) This northern or left-hand side 
of the map represents a portion of Brownsville, Tex.; this place 
marked "' road " is the road dividing the post from the town ; here 
are D Company barracks, B Company, C Company, and the vacant 
barracks; here's the guardhouse; here's the administration building, 
and this is the line of officers' quarters. Here's the Rio Grande 
River. Xow, can 3^ou take this pointer and point out on the map 
Major Penrose's quarters, first? — A. [Witness places pointer on 
building marked "A."] 

Q. Now. point out on the. map the small building occupied by the 
civilian quartermaster clerk. — A. [Witness indicates small building 
marked " B."] 

Q. Point out the quarters that you believed, on the night of Au^st 
13, 190C, were occupied by Captain Macklin. — A. [Indicating build- 
ing marked " 12 " — the western side of the building.] 

Q. "\Aniich are the quarters you afterwards ascertained he lived in ? — 
A. Here in No. 11. 

Q. Hairston, you were on post at call to quarters and taps on the 
night of August 13 ? — A. Yes, sir. 

Q. Did you see the officer of the day about the time, or just prior to 
the time, he received the reports of check roll call ? — A. Yes, sir. 

Q. "\Aliere was he when you first saw him? — A. Standing in the 
middle — I saw him when he left his quarters and went out in the 
middle of the parade ground. 

Q. How close were you to his quarters when he left them? — A. I 
think I was something like 100 yards down. 

Q. Could you see him and recognize him, or could you just tell 
some one was leaving there, and then afterwards — hearing the re- 
ports — knew it must be the officer of the day ? — A. Yes, sir ; I could 
recognize him by his saber rattling, and then I naturalh'^ knew his 
walk. 

Q. You were nearly 100 yards away when he left his quarters? — 
A. Yes, sir. 

Q. And did you hear the noncommissioned officers report ? — A. Yes. 
sir. 

Q. And afterwards did you notice where the officer of the day 
went? — A. Yes. sir. 



82 

Q. AVliere did he go? — A, He went across between B and C Com- 
panies — seemed to me he went right in between quarters B and C. 

Q. This was a dark night, was it not ? — A. Yes, sir ; it was a dark 
night, but you could see from the lights at the barracks and the lights 
on the officers' line; you could seen anybody walking across the 
parade ground. 

Q. You couldn't see him all the time, but you could catch him here 
and there under the lights, when he was walking across? — A. I 
could see him pass the lights. You could always see anyone cross the 
parade grouncl at night. 

Q. Why did j^ou pay such particular attention to where Captain 
Macklin was going? — A. Well, any sentinel on post, will watch the 
officer of the day, always. 

Q. Did 3^ou again see Captain Macklin? — A. Yes, sir; saw him 
about fifteen or twenty minutes after that come across the parade 
ground and AYent to his quarters. 

Q. How close were you to his quarters when he entered them? — 
A. I think I was something, well, about 25 yards, I think, down the 
walk — down the road. 

Q. Did you notice which side of the building — marked 11 and 12 
on that map — he entered ? — A. Yes, sir ; but I don't know which side 
he went in, but I know he went in that building. 

Q. Which way were you walking at the time he entered the build- 
mg? Let's see; you kept the buildings on your left? — A. I was 
coming up toward his house. 

Q. Toward the river ? — A. Yes, sir. 

Q. And in front of the quarters, or not? — A. Yes, sir; I was in 
front. 

Cross-examination by the Accused : 

Q. Hairston, if you will just remember in your answers to just 
take your time to it and think of what you are going to say and talk 
as loud as you can. Can you remember that ? — A. Yes, sir. 

Q. How long had you been in the service? — A. I think I lack 
about seven days of serving eighteen months. Enlisted May 26, 1905, 
at Muskogee, tnd. T., and was discharged November 19, 1906, Fort 
Reno, Okla. 

Q. What was the general condition of your company as far as re- 
gards the lengih of service of the men? — A. Well, some men there 
had in as high as twenty-six years. 

Q. Very few had as little service as you? — A. Oh, yes, sir; eight 
or ten in the company had less service than I. 

Q. Had you ever been under fire? — A. No, sir. 

Q. What kind of a night was it on the 13th of August when you 
were on guard ? — A. It was a dark night. 

Q. And 3'our post was No. 3 ? — A. Yes, sir. 

Q. AVill you come up to the map ? Just point out the limits of your 
post during the nighttime. — A. [Witness indicated that the post 
extended from the front of quarters marked "A," westward along the 
front of officers' line ; between quarters marked " 12 " and building 
marked " B;" thence southward to the southwest corner of quarters 
12, and thence eastward in rear of the officers' quarters to starting 
point.] 

Q. Can you give any estimate of the time it took you to walk 



83 

around that post? — A. Yes, sir; I could go around it in at least eight 
or ten minutes. 

Q. Now, after the shooting began that night, you only walked on 
a certain portion of the post: will you point that out? — A. Yes, sir. 
From Xo. 12 to A [indicating front of line of officers' quarters]. 
The front, not in rear. 

Q. Were there nniny lights ;»4ong that walk? — A. Yes, sir; I don't 
know exactly whether from the quarters or far from the quarters, 
but something like that — it is ver}^ li^ht. You could see good; see 
l^ersons walking down the walk any place. 

Q. Do you remember what was the closest light to quarters No. 
12? — A. No, sir; I could not, but I think it is the light right in 
toward this second quarters, or at the corner of these. 

Q. You think there is a light betAveen quarters 11 and 12 and 9 
and 10?— A. Yes, sir. 

Q. You don't think the nearest light to No. 12 is between quarters 
9 and 10 and 7 and 8 ? — A. No, sir ; I don't think it is, but it might 
be. I could not tell. 

Q. "Were there any lights on the parade or bordering the parade, 
from that walk, over to the compam^'s barracks? — A. T don't re- 
member ; I don't think it were. 

Q. How far away on a night like that was could you distinguish 
i:)eople walking across the parade? — A. I could distinguish them all 
the way, for the reason why, lights over here show up out to the 
middle of the parade ground. There is light in front of these bar- 
racks, and then that shows the whole parade ground or anj^ person 
crossing it. 

Q. '\^liat is the character of those lights — quartermaster lights, 
the same as you had at Niobrara, for instance? — A. Yes. sir. 

Q. Do you happen to know who lived in quarters No. 10? — A. No, 
sir; I don't remember. I halfway believe that was the officers' mess, 
I am not sure. Somewhere along there, but I wouldn't say it was. 

Q. You think it was the officers' mess ; No. 10 ? — A. Yes, sir. 

Q. You happen to remember who lived in No. 9? — A. No, sir; 
I doesn't. 

Q. In No. 3? — A. Lieutenant Grier; I am not sure. 

Q. You think Lieutenant Grier lived in No. 3? — A. Yes, sir. 

Q. Happen to know who lived in No. 7? — A. No, sir. 

Q. The quarters you say you went to to weaken Captain Macklin 
on that night were quarters No. 12? — A. Yes, sir; quarters No. 12, 
sir. 

Q. Did you ever testify before on this point. Hairston? — A. No, 
sir. 

Q. Probably you don't understand me. Have you ever been ex- 
amined as a witness in any case before, dealing with this Browns- 
ville affair? — A. Oh, yes, sir; I have. 

Q. Where were you a witness? — A. I Avas examined before Cap- 
tain Lyon at Fort Reno. Okla.. and examined by Gilchrist Stewart 
at El iveno, and I was examined by the Senate committee in "Wash- 
ington. 

Q. Was iuiy question asked you by the Senate committee as to the 
location of Captain Macklin's quarters? — A. I think there were; yes, 
sir. 



84 

Q. Do you remember how you described it? — A. Yes, sir; had the 
map turned around wrong. 

Q. You were confused on it. You first described his quarters as 
being those of Major Penrose? — A. Yes, sir. 

Q. And later, when you got your mind straightened out as to 
which side of the post you were on, you made another location of Cap- 
tain Macklin's quarters? — A. Yes, sir. 

Q. Just let me make this plain to your mind. "When you were 
asked where Captain Macklin lived you first pointed at this house, 
didn't you, "A?" — A. Yes, sir. 

Q. And later, when you were instructed by the committee that the 
location of Fort Brown was such that this was the eastern half of 
the garrison, and this the western half toward the Rio Grande River, 
you pointed out another house ? — A. Yes, sir. 

Q. Do you happen to remember, after this explanation was made to 
you and after your mind was made clear as to the particular line of * 
officers' quarters, what house was pointed out as Captain Macklin's ? — 
A. Yes, sir ; second house from the end there. 

Q. Just come up and point it out to the court. — A. This one, No. 12. 

Q. You think you pointed out No. 12 ? — A. Yes, sir. 

Q. How were those houses numbered, Hairston, from A to the 
river? — A. I don't understand. I never paid any attention to the 
number of the houses. 

Q. That is. quarters No. 1, were they farther from the river than 
quarters No. 12 ? — A. No, sir ; closer. iSTo. 1 as situated ? Yes, sir ; it 
was farther. 

Q. Hairston, who occupied that last house on the officers' line, the 
one nearest to the river? — A. They says, so I learned later, that the 
quartermaster clerk occupies that. 

Q. You didn't know that at that time? — -A. No, sir; I didn't know 
at that time. I thinked the sergeant-major occupied that, 

Q. And who do you think occupied the second house at that time — 
the second real set of double quarters? — A. I first say the quarter- 
master clerk occupied that. 

Q. "\Miat do you mean by that time? Do you mean the time you 
were testifying before the Senate committee ? — A. Yes, sir. 

Q. AYlien was that. Hairston? — A. I don't exactly know; I think it 
were on the 21st or 22d day of February. 

Q. Did 3^ou tell the Senate committee, Hairston, that the sergeant- 
major occupied that same house? — A. I think I did, sir. 

Q. As shown on the map here ? — A. I think I did. 

Q. And that the quartermaster clerk occupied the second house? — 
A. Yes, sir. 

Q. And the third house was occupied by Captain Macklin? — 
A. That's what I first stated. 

Q. And in order to show you that there was no confusion in your 
mind as to whether or not it was a single or double set of quarters, 
did they ask you 

By the Judge- Advocate. May it please the court : I think that inas- 
much as the testimony given by this witness before the Senate com- 
mittee, or copies of that testimony, are in the possession of both the 
defense and the prosecution in this case, that if it is the intention 
to impeach the testimony of this witness, or to show that he made 
previous inconsistent statements, that, after he has stated here as to 



85 

where Captain INIaoklin's quarters were and where he went, the proper 
method of impeaching- his testimony is to read to him from this re- 
port of the Senate committee the questions and answers as recorded 
there, and not continue the line of questioning as it is at present being 
conducted. 

By Associate Counsel. I regret very much, may it jilease the court, 
that the form of my examination has found disfavor with the judge- 
advocate. I have not the slightest desire in the world to impeach 
the testimony of this witness. I believe this man is telling the truth 
in his direct "examination and in his cross-examination and in his 
examination before the Senate committee. I am trying to show, may 
it please the court — if I have to state that — the fact that this man is 
a young and inexperienced soldier, who, under certain unusual condi- 
tions, brought out in his testimony, was naturally confused; and his 
mind was confused, not only with unfamiliarity with the occupancy 
of these buildings at Fort Brown, but also by the incidents of that 
night, and in everv statement, may it please the court, that is of 
record, that we have before us, he has shown that confusion by point- 
ing out the diflerent localities of the building occupied by Captain 
Macklin. It is only fair to us, it is only fair to the truth, that this 
man does actually show to the court whether or not he is certain of 
that building or whether or not he is confused about it. He is willing 
to tell me the truth, just as he is willing to tell the prosecution, who 
introduced him as a witness, and he is willing to Ixill the court. I 
am trvino- to get out nothing from him; I believe he is a credible 
witness. 

By the Judge- Advocate. In view of the statement of the associate 
counsel, the prosecution has no objection to the continuation of this 
line of questioning. It was my belief at the time that the defense 
was attempting to attack the witness's credibility, but, inasmuch as 
such is not the case, the prosecution, of course, can have no objection 
to testing the accuracy of the witness's knowledge or what impression 
he had at that time. 

By the PREsmEXT of the Court. The objection of the judge-advo- 
cate being withdrawn, the counsel will continue his examination. 

(Last question, as recorded, was read to counsel, and completed 
as follows:) 

Q. Did they ask you the number of the house occupied by Captain 
Macklin — ask you in this form: ""Was it quarters 9 and 10? '" and 
did you reply': "Yes; marked 9 and 10?" — A. I think I did; by 
not understanding the diagram of the map. 

Q. I misquoted. I should have said it was explained to you by 
these Senators asking if it was quarters 9 and 10 in a conversation 
between themselves; but was that your idea before them, that it was 
quaHers 9 and 10? — A. Yes, sir; I think it was, after getting the 
quartermaster clerk's house mixed up. 

Q. Hairston, when you first went into what you think was Captain 
Macklin's quarters, what officers had you seen in the post? — A. Xo 
one more than Captain Lyon, Lieutenant Grier, and Major Penrose. 

Q. Just when did you go over to Captain INIacklin's quarters after 
you had first seen Major Penrose? — A. Immediately after I left the 
company from Major Penrose. 

Q. Do I understand you to mean, Hairston, that after Major Pen- 
rose rushed out of his quarters that night and gave you this order to 



86 

have the ahirm sounded, that you rushed across the parade and then 
back to 3^our post? — A. Rushed across the parade to Company B and 
then back to my post, and by the time I got back to my post I met 
Private De Saussure and he gave me that order, and I called Captain 
Macklin. 

Q. And on your return from the company toAvards your post you 
met Private De Saussure ? — A. Yes, sir. 

Q. And he gave you the order from the sergeant of the guard to 
waken Captain Macldin ?— A. Yes, sir. 

Q. And in response to that order you went over to his quarters, as 
you thought ? — A. Yes, sir. 

Q. What officer besides Major Penrose had j-ou seen, if any? — 
A. Captain Lyon and Lieutenant Grier, I think — I am not sure — but 
I think I saw them coming across the parade ground. 

Q. I would like you to be sure. Think about that. — A. I am not 
sure, but I think that's the only two I seen. 

Q. Do you think you saw them? — A. Yes, sir; I does. 

Q. You think you saw both Lieutenant Grier and Captain Lyon ? — 
A. Yes, sir, 

Q. You don't know what quarters Lieutenant Lawrason occupied, 
do you? — A. I think it was the officers' mess quarters; I don't know 
exactly, but I think it were those. 

Q. Could you point that out on the map? — A. No, sir; I couldn't; 
I was not well acquainted. 

Q. You would not be able to point out Lieutenant Lawrason's 
quarters ? — A. No, sir. 

Q. Was his house a furnished house, do you know ? — A. No, sir ; I 
never were in it. 

Q. Do you know whether it was a lighted house that night? — 
A. No, sir ; I doesn't. 

Q. The house you actually went to to waken Captain Macklin you 
say was lighted? — A. Yes, sir; had a dim light in it. 

Q. Were there any shades on the front windows? — A. Yes, sir. 

Q. Were those shades drawn ? — A. Drawn ; yes, sir. 

Q. Was there any furniture on the porch ? — A. I never noticed, sir ; 
I am not sure of it. 

Q. Was there any table on the porch ? — A. Don't remember that. 

Q. Was there any saber? — A. Don't remember that; never seen 
any. 

Q, Now, Hairston, you say that later that night Corporal Burdett 
came up from the guardhouse, inquired from 3"ou why jou had not 
wakened Captain Macklin and said that he would do it; is that 
right? — A. Yes; he said, "Come with me, I will wake him," just 
like that, and he went and he done the rapping and calling, and he 
explained the matter to the captain, Avhat was the matter. 

Q. You didn't actually go up to the house with Corporal Burdett, 
did you, Hairston? — A. Yes, sir; I did. 

Q. Did you see Captain Macklin and speak to him?— A, Yes, sir; 
spoke to him; I didn't see him, but heard him when he spoke; he 
said all right, he would get up right away. 

Q. You didn't see Captain Macklin come out of that place? — 
A. Yes, sir ; I did. 

Q.. Where were you when you saw him? — A. I Avas about 30 or 40 
feet down the walk, east from the door, when he came out. 



87 

Q. You "were on your post, as I mulerstaiul you, and about 30 or 40 
feet along the walk there ? — A. From the door ; yes, sir. 

Q. Do you happen to know about what time that was — what time 
of night? — A. Well, I think mighty near — guessing — something like 
about 10 or 15 minutes to 1. 

Q. It was considerable time after Major Penrose had left his quar- 
ters, was it ? — A. Yes, sir ; a good while. 

Q. What did you think of that shooting that night? — A. What did 
I think of it? I couldn't think anything of it no more than I thought 
it was civilians firing on the quarters. 

Q. Did you think you were in any danger there? — A. Indeed I did. 

Q. Why so? — A. Because I didn't know but Avhat the}' may shoot 
at me. 

Q. Yon were armed, weren't you?— A. I were. That couldn't 
keep them from shooting at me at all. 

Redirect examination by the Judge- Advocate : 

Q. You didn't hear any bullets, however, did you, Hairston? — 
A. Yes, sir. 

Q. How many did you hear ? — A. I couldn't count them ; I couldn't 
say how many there were. I don't know, quite a lot of them it seemed 
to me like. 

Q. Did you have anj^ watch with vou that night? — A. No, sir, I 
didn't. 

Q. No means of telling the time, did you ? — A. No, sir. 

Q. So it is purely guesswork at the time, the accurate hour Captain 
Macklin left his quarters. You have no means of being certain that 
it was 10 or 15 minutes to 1, have you?^ — ^A. No, sir, but my just 
guessing at the time; something like that, I think. 

Q. It may. however, have been considerably^ later or considerably 
earlier, might it not? — A. Yes, sir; might have been later or might 
have been earlier; I couldn't tell. 

Q. Did Corporal Bnrdett go to the same house and rap — that is, 
the same house at which you rapped? — A. Yes, sir. 

Q. Are you absolutely certain about that or not? — A. Yes, sir; I 
went with him right back to the same door. 

Q. Did vou ever rap or did j^ou see him rap at all at the door of 
No. 11 ?— A. No, sir. 

Q. Did you go on that side of the little division railing at all? — 
A. No, sir. 

Q. So that there might have been a saber against that door and you 
not have seen it? — A. Yes, sir; might have been there, but I didn't 
see it. 

Q. AAlien you stated in your cross-examination that Corporal 
Burdett explained the situation to Captain Macklin, did you mean 
he explained it to him after he left the house or just Avhile he was 
calling to him? — A. No, sir; at the door, after he called him, and he 
answered : wh}", he explained what was the matter then. 

Q. Just how was this? Corporal Burdett knocked at the door? — • 
A. Yes, sir: Corporal Burdett did the knocking. 

Q. And did Captain Macklin then reply? — A. Yes, sir. 

Q. And then Corporal Burdett made this explanation, did he 
not? — A. Yes, sir; made this 

Q. And then a minute or so later Captain Macklin came out? — • 
A. Yes, sir. 



88 

Q. Did he stop then to talk with Corporal Biirdett? — A. No, sir; 
didn't stop then at all; when he came out the door he came out 
buckling on his saber, and he ran right down towards the guard- 
house. 

Q. At the time you were examined before the Senate committee you 
had never had very much experience in reading maps, had you? — 
A. No, sir. 

Q. Did you ever make a road sketch ? — A. No, sir ; I tried to, but I 
didn't. 

Q. Did you ever use a compass at all? — A. No, sir. 

Q. Are you familiar with the points of the compass? — A. No, sir. 

Q. You say you have tried to make a road sketch? — A. Yes, sir. 
What I had reference to, thinking you meant to plan out the roads 
around the garrison. I thought that was what you meant. I never 
had any experience with that ; I tried to, but couldn't. 

Q. But now you feel more familiar with maps since you have testi- 
fied so much ? — A. Yes, sir. 

Q. And been shown different maps? — A. Yes, sir. 

Recross-examination by the Accused : 

Q. Was there any dividing rail between the quarters down there, 
Hairston — 11 and 12, for instance, or 9 and -10? — A. No, sir; I don't 
think it were. Now, what does you mean? Does you mean between 
the yards or the porches between the quarters? 

Q. I mean between 11 and 12 ? — A. Porches ? 

Q. I mean a rail way. — A. I think there was a rail way between all 
the quarters; I am not sure, but I think there was. 

Q. And in that double set of quarters there is a railing dividing 9 
and 10 ? — A. I am not sure, but I think there was. 

Redirect examination b}^ the Judge- Advocate : 
Q. And between 11 and 12, do you think? — A. Yes, sir. 

Recross-examination by the Accused: 
Q. Now, Hairston, what I mean is this: That in that quarters, 11 
and 12, down there, there is a porch running along the entire double 
set of quarters. — A. Yes, sir. 

Q. Is there any railing on that porch that divides the quarters 11 
from the quarters 12 ? — A. That's what I say — I think the}^ are. 

Examination by the Court : 

Q. You stated, Hairston, that you went to quarters No. 12 and 
wakened Captain Macklin ? — A. Yes, sir. 

Q. And spoke to him and he spoke to you ? — A. Yes, sir. 

Q. Did you go inside of the outer door of these quarters? — A. No, 
sir ; I did not. 

Q. Then you spoke to him through the door? — A. Yes, sir; I 
knocked ; he answered each time I knocked. 

Q. Can you state it was Captain Macklin's voice that answered 
you? — A. No, sir; I could not. It were a coarse voice, sounded as a 
man's voice. 

Q. Did the voice indicate to you what was the location of the man, 
whether he was on the ground floor or the upper floor? — A. Yes, sir; 
seemed he was on the upper floor, sir. 

Q. Upstairs? — A. Yes, sir. 



89 

Q. You went back again with Corporal Burdett? — A. I went 
three times by myself, the last time with Corporal Burdett. 

Q. And while you and Corporal Burdett were together did Cor- 
poral Burdett speak to Captain jSIacklin in the same way — through 
the door? — -A. Yes. sir. 

Q. He didn't open the door? — A. Xo, sir. 

Q. And you heard Captain Macklin sjieak to him? — A. Yes, sir. 

Q. Still from the upstairs? — A. Yes, sir; from upstairs. 

Q. Did it have a sound as if it might have been from the other 
side of these quarters upstairs? — A. I couldn't say it was; it sounded 
very low, you could hear him — just as if you would be upstairs and 
holler down to a person, the person couldn't tell very well what part 
of the house you Avere in. 

Q. You never saw Captain Macklin until he came downstairs and 
out the door? — A. Until he came out the door. 

Q. And you are sure he came out of the house you went to origi- 
nally? — A. Yes, sir. 

Q. Will you point out the place where you were w^en you heard 
the firing ? — A. Yes, sir. Standing right at the corner of this build- 
ing. [Indicating northeast corner of building marked "A."] 

Q. You were right there, were you ? — A. Yes, sir. 

Q. A\liat did you do, first thing? — A. The first thing. Major Pen- 
rose came out to me right here in the road and says to me, " AVliat is 
the matter? " [Indicating that Major Penrose came to him at 
point in front of building marked "A."] And I said, " I think they 
are firing on the quarters," and he he said, " Well, have the trumpeter 
of the guard sound ' call to arms,' " and I were somewhat pretty much 
interested in it mj^self, and I ran then across to Company B with 
Major Penrose and I stands here in front of the company until the 
company was formed and the roll was called and I seen all the men 
were out — I was that much interested; wanted to see — and then I 
came back to my post, and some place right along in here [indicating 
point along sidewalk about opposite center of officers' line], I don't 
know exactly, but some place along in here between these buildings, 
and Private De Saussure came to me and told me — the commander 
of the guard. Sergeant Reid, said for me to call Captain Macklin. 

Q. Who was that you said came up and told you to call Captain 
Macklin? — A. Private De Saussure — member of the guard. 

Q. How long was this you have just narrated — about how long do 
you think that was after the firing? — A. After the firing? I think 
it had been eight or ten minutes — something like that. 

Q. Could it have been half an hour? — A. No, sir; it wasn't that 
late. 

Q. Was your post on the sidewalk or in the road? — ^A. On the side- 
walk, sir; supposed to walk in the road, but I always walked on the 
sidewalk at night. 

Q. You walked on the sidewalk at night ? — A. Yes, sir. 

Q. Before that firing began j^ou had been walking your post, had 
you? — A. Yes, sir; been walking 'round and 'round, until the firing 
came up and caught me there. 

Q. Did you notice any lights in the officers' quarters — any of 
them — before the firing? — A. There was a light in Major Penrose's 
quarters, sir. 



90 

Q. There was ? — A. Yes, sir. 

Q. In any other set? — A. None, to my remembrance. What I 
mean is, none I remember I seen before I came to Captain Macklin's. 

Q. When yon went up there with the corporal to Captain Mack- 
lin's house, you heard a voice, you say. Was that Captain Macklin's 
voice, did you think, or did you know? — A. I wouldn't say it were 
Captain Macklin's voice. I could not swear that, of course ; I believe 
it was a man's voice — very coarse voice — and it sounded to me like 
his voice. I couldn't say it was him; I didn't know — I didn't see 
him, and couldn't swear to something I didn't see. 

Q. The first time you went to his quarters, you say, was how long 
after the firing? — A. I guess eight or ten minutes after the firing 
ceased. 

Q. "N^liat did you do when you got to his quarters? — A. Xot any- 
thing more than went up and rapped on the door and he answered, 
and I told him thej^ wanted him at the guardhouse at once, and he 
said, "All right." 

Q. You say he answered? — A. Yes, sir; he answered. At least 
I thought it were him. A man's voice — I could not believe it were any 
other than him. His familj^ were not there at the time and I didn't 
think anyone was living in the quarters but him alone. 

Q. Did you recognize his voice — Captain Macklin's?^ — A. I think 
I did, sir. 

Q. A^Hiat did you do then? — A. I returned then, walked my post a 
little distance down the walk and came back again after he didn't 
come out, and called him again and told him the same words. 

Q. A^^iy did you come back again? — A. Come back again because 
I was interested — him not getting up. 

Q, "What did you do then? — A. I called him again and explained 
the same results, and I walked down then and meets Corporal Burdett 
coming up to see what was the matter. 

Q. Well, as near as you can estimate, how long did all this take — 
from the time you first went to his quarters until he finally came 
out ? — A. I guess twenty or twenty-five minutes. 

Q. '\Yhen you went to arouse Captain Macklin, did you call his 
name at anytime? — A. Yes, sir; called "Captain Macklin." 

Q. You did ?— A. Yes, sir. 

Q. The first time you called Captain Macklin, did j^ou just call 
his name? — A. Yes, sir; I called him just in an ordinary — just like 
any private would call any officer, and he answered, " Hello ! " 

Q. That's all he said?— A. Yes, sir; "Hello!" I told him they 
wanted him at the guardhouse at once, and he said "All right " — just 
in that tone— "All right." 

Q. The second time you called Captain Macklin what did he 
say? — A. I said the same words; he said the same. 

Q. And the third time you called ? — A. Did the same thing. 

Q. You said the same and he said the same? — A. Yes, sir. 

Q. The fourth time, when Corporal Burdett went back there and 
called, you went with the corporal, you say ? — A. Yes, sir. 

Q. What did the corporal say? — A. The corporal he called him 
and, after he answered, the corporal explained the matter to him. 

Q. Just state what he said. — A. The corporal told him to get up ; 
they wanted him at the guardhouse at once; they had been firing on 
the quarters and they wanted him, and he said, "All right," and I 



91 

turned from the door and so did the corporal, and he came out a 
minute after I turned from the door. 

Q. Did you stand on the porch until he came out?— A. I walked 
on down the walk, I guess about '^)0 or 40 feet, somethino; like that, 
from the door. 

Q. I Avould like to ask him if he has an idea, if he can think satis- 
factorih' to himself to tell the court,, about how long- it was from the 
time he*^ saw Major Penrose until he saw Captain Macklin come out 
of his quarters? — A. I guess it was very near 1 o'clock; something 
like that. I don't think it was any more than 8 or 10 minutes to 1 — 
I know it was pushing close — from the time the shooting took place, 
about 10 minutes to 12, until that time. 

Q. You think from 10 minutes to 12 until 1? — A. Yes, sir. 

Q. You said when you came out of Captain Macklin's quarters that 
you went off down the walk? — A. I didn't say I come out of his 
quarters. 

Q. A'\lien you came off the porch of the quarters, after you left 
Corporal Burdett? — A. Yes, sir. 

Q. Take the pointer there and show exactly where you went after 
you came out. — A. After leaving. Corporal Burdett went awa^^ to 
"the front of me at the time — front of quarters No. 12 — I came 
back in that direction. I Avas right along in front of these quarters 
somewhere when he came out. [Indicating that he walked from 
quarters No. 12 to a point eastward about in front of quarters Xos. 
9 and 10.] 

Q. You testified, I believe,.that in No. 12 quarters there was a light 
burning ? — A. Yes, sir ; it were. 

Q. Where was that? — A. It seemed to me a dim light. I couldn't 
tell whether the light Avere downstairs or on the steps or where it 
were, but I could see a dim light. The w^indow shades were down, 
and I couldn't tell where the light was at. That's the reason I went 
to those quarters and knocked. 

Q. Are you sure that light was in No. 12 quarters? — A. Xo, sir. 

Q. You say you are not sure it was in Xo. 12? — A. No, sir; not 
perfectly sure. 

Q. What do you mean? You mean it might have been in Xo. 11; 
is that what A'ou mean? — A. What I mean — I didn't know whether 
it were in 12 or not, but I could see the light halfway shine luider 
the blind, as far as I could see. Seemed there was a lamp turned 
down low, from the length of the light that were in the house. 

Lieut. W. C. Johnson, Twenty-sixth Infantry, a witness for the 
prosecution, was duly sworn and testified as follows : 

Direct examination by the J ltdge- Advocate : 

Q. Please s^ate your name, rank, and station. — A. Wait C. John- 
son ; first lieutenant. Twenty-sixth Infantry ; Fort Sam Houston, Tex. 

Q. Do vou knoAv the accused ? If so, state who he is. — A. I do. 
Captain Macklin, Twenty-fifth Infantry. 

Q. Were you ever stationed at Fort Brown, Tex.? If so, please 
state, approximately, the date of your arrival and the date of your 
departure. — A. I was stationed there at tAvo dirt'erent times. 

Q. The last time is "the one I have particular reference to. — A. 
I'rom about the 20th of May until the 5th of July. 



92 

Q. What year?— A. 1906. 

Q. You left there the 5th day of Juh^ ? — A. Yes, sir. 

Q. Did practically the entire garrison leave about the same time? — 
A. The entire garrison left, with the exception of Lieutenant Thomp- 
son and about 40 men. 

Q. The garrison between the dates you have just mentioned con- 
sisted of certain companies of the Twenty-sixth Infantry, did it 
not?— A. It did. The Third Battalion. 

Q. And from the 5th of July on until the arrival of the First Bat- 
talion of the Twenty-fifth Infantry from Fort Niobrara, the post 
was garrisoned merely by Lieutenant Thompson, and how many 
men ?— A. About 40. "^ 

Q. ^A^iere did Lieutenant Thompson live while you were there, do 
you remember the number of his quarters? — A. I think it w^as quar- 
ters No. 8. 

Q. He was. living there at the time you left? — A. He was. 

Q. Which quarters did you occupy during the time you were 
there? — A. Eleven and 12. 

Q. You used both sides of the building? — A. I did. 

Q. With reference to the partition wall between the set marked 

11 on the map there and the set marked 12; will you please state 
wdiether that was a sound proof wall or what kind of a wall it was? 
Both upstairs and down. — A. To the best of my knowledge, the wall 
below was plastered, and upstairs, between the back rooms, it was 
merely a board wall. 

Q. Between the two back bedrooms, you mean? The rooms ordi- 
narily used as sleeping quarters? — A. Yes; the ones used as sleeping 
quarters ; that is, the ones we used as sleeping quarters. 

Q. Was there a door in the partition between these two bed- 
rooms ? — A. There was. 

Q. Was that door kept open all the time j'ou were there ?^A. Dur- 
ing our occupancy of the quarters it was left open all the time. 

Q. Was it locked when you left there ? — A. Not to my knowledge. 

Q. Was there au}^ lock on it. or any key to it that you know 
of? — A. I think there was a snap lock or Ijolt on the door, but I 
never saw a key to it. 

Q. And when you left, it is the best of your recollection the door 
was left open? — A. It is. 

Q. Even with that door shut was it possible to hear ordinary con- 
versation from one side of the partition to the other? — A. As I 
remember, Mrs. Johnson and I used to occasionally talk through the 
partition, wlxen the door was shut. 

Q. That is, you w^re in the A. I was in the back room of No. 

12 and Mrs. Johnson in the back room of No. 11. 

Q. Did you have to raise your voice to do that? — A. Not particu- 
larly; I presume I did talk a little louder than I am* talking at the 
present time. 

Q. But so far as an obstacle to the carriage of sound is concerned, 
that wall was not as efficacious as an ordinary division wall between 
rooms, was it ? — A. I should say not. 

Q. Even downstairs could you hear people talking on the other side 
of the partition ?— A. Not particularly well. 

Q. But you could distinguish the fact they were talking; you could 
hear mumbling? — A. Oh, you could hear mumbling. 



93 

Q. If a person raised his voice you could distinguish what he said, 
could you not ? — A. Yes. 

Q. The stairway's in No. 11 and 12. started on the ground floor at 
the rear of the hall, or in the front of the hall? — A. At the rear of 
the hall. 

Q. And thence ran upward towards the front of the house, did they 
not? — A. Towards the front of the house. 

Q. If anyone pounded on the front door of No. I'i, could a person 
in the back room of No. 11 hear equally as well as a person in the 
back room of No. 12 upstairs or not? — A. No. sir; I don't think so. 

Q. Not so well. If the door in the partition between the two back 
bedrooms was open, would the sound carry approximately the same to 
either bedroom from either front door? — A. It would, except that it 
was farther. That's all. 

Q. In quarters 9 and 10 which way did the staircases run? — A. To 
the best of my recollection they ran at right angles to the hall. 

Q. And therefore at right angles to the stairways in (piarters 11 
and 12 ?— A. Yes. 

Q. And in 7 and 8. do you remember which way they ran? — A. 
Seven and 8, they ran the same as thev did in 11 and 12. 

Q. That is, parallel to the hall ?— A. Parallel to the hall. 

Cross-examination by the Accused : 

Q. HoW' long did ypu live dow^n at Fort Brown, Lieutenant John- 
son, all together? — A. About four months. 

Q. How many houses did you live in down there? — A. I lived the 
first time in No. 5; the last time in 11 and 12. 

Q. Are you intimately familiar with the construction of houses 9 
and 10? — A. Not particlilarly so. 

Q. The construction of the double set of quarters 11 and 12 is the 
same in each side; 11 is constructed similarly to 12? — A. I believe 
it is. 

Q. Do you know positively about that?-^A. Well, there is a bath- 
room on the side of 11 that there isn't on the side of 12. 

Q. There is no bathroom on the side of 12? — A. No bathroom in 
that house? 

Q. Yes. — A. Downstairs in the back room. 

Q. What is the construction of No. 12 upstairs ? 

By the Judge- Advocate. jNIay it please the court : The next wit- 
ness, who is outside now and who was not ready to come on the 
stand at the time I called this witness, has prepared, at my sugges- 
tion, four diagrams showing the upstairs and downstairs of quarters 
9 and 10 and 11 and 12, and he was quartermaster dow'n there for 
some time and he probably can, by means of the map, state very 
clearly how things were. 

(Last question repeated to w'itness as recorded.) 

A. One front room and one back room. 

Q. What is the connection betAveen the front and back rooms 
upstairs of 12? — A. A doorway leading through a hall way at the 
head of the stairs. 

Q. P^xcepting for that doorway the rooms are separate? — A. This 
little hall way at the head of the stairs, and there is a door from the 
head of the stairs to the front room and another door to the back 
room. 

164.3—07 M 7 



94 

Q. But as far as the connection between the front and back bed- 
room of No. 12 ? — A. There is no connection between them except 
those two doors. 

Q. What is the length of these quarters, Mr. Johnson? — A. You 
mean the rooms or the whole building? 

Q. The whole building. — A. I should say about 40 feet. 

Q. What house did Lieutenant Leckie live in when you and he 
were stationed there together? — A. In the same house, 11 and 12. 

Q. Which side of the house? — A. He was there but a short time 
after my arrival there the second time; he lived — slept in the back 
room of No. 12. 

Q. Are you sure of that — that he slept in the back bedroom of No. 
12? — -A. It is the back or the front, I think; and Mrs. Leckie occu- 
pied the front room of No. 11 and Mrs. Johnson and myself occu- 
pied the back room of No. 11. That is upstairs, and downstairs we 
used the same rooms. 

Q. Any shower bath in quarters No. 11? — A. Yes: out in the rear 
in the "' L." 

Q. How about quarters No. 12 ? — A. Bathroom ? 

Q. Yes; shower bath? — A. None downstairs; there is a bathroom, 
but no shower bath. 

Redirect examination by the Judge- Advocate : 

Q. Mr. Joluison, when you stated there is no bathroom in quarters 
No. 11, you meant there was no bathroom at the time vou left there, 
didyounot?— A. No. 11? 

Q. Or do you know now? — A. If I stated there was none in No. 
11, it was a mistake; I don't remember I stated there was none in 
No. IL 

Q. I may be unintentionally misquoting you ; I thought you stated 
with reference to bathroom, in either one of the other set of quarters, 
*' there is no bathroom." 

By Associate Counsel. My understanding is he said in quarters 
No. 12 there is no bathroom between the front and back rooms. 

Q. It might have been changed since then, however? — A. Oh. 3'es. 

Q. About what was the depth of each room in the house from front 
to rear — the front bedroom, dp j'ou suppose? — A. About 12 or 15 
feet, I guess. 

Q. And the back bedroom, what was that? As deep or not? — 
A. I should say about the same. 

Q. The length of the main hall downstairs was about what? — 
A. About 20 feet— 24 feet. 

Q. With reference to the map on the wall, do you recognize the 
officers' quarters at Fort Brown? — A. I do. 

Q. That portion of each side of the officers' quarters that is repre- 
sented on the map as being almost square, in front, is that two story 
or one story? — A. Two story. 

Q. And the long portion extending from the rear of this front 
part of each double set of quarters, back towards the lagoon, is that 
two storj^ or one story? — A. One story. 

Q. Was it customary down there at Fort Brown for the officers to 
sleep with the windows and doors open in the summer time? — A. I 
can't say about all of them. 

Q. You personally did it? — A. I did. 



95 

Q. You wauled lo take advantage of every breath of air that was 
stirring, did von not i — A. All that was coming. 

Lieut. II. Ci. Leckie, Twenty-sixth Infantry, a witness for the 
prosecution, was duly SAvorn and testified as follows: 

Direct examination by the Judge-Advocate: 

Q. Please state your name, rank, and station. — A. Harry G. Leckie : 
second lieutenant, Twenty-sixth Infantry; Fort Sam Houston, Tex. 

Q. Do you know the accused'^ If so, state who he is. — A. Yes, sir. 
Captain jNIacklin, Twenty-fifth Infantry. 

Q. Were you ever stationed at Fort Brown, Tex ? If so. please 
state the approximate dates of such stay. — A. I was stationed at 
Fort Brown, Tex., from the ()th' of September. 1003, to the -Id of 
June, 1906. 

Q. Did you at any time during this stay act as quartermaster of 
the post? — A. I was quartermaster for about two years of that time; 
not quite two years. 

Q. And are you familiar with the interior arrangement of rooms 
antl the construction of the officers" (quarters down there? — A. Yes, 
sir. 

Q. Did you ever live in quarters 11 and 12? — A. I lived in 
quarters 11 and 12 all the time I was stationed at Fort Brown. 

Q. Lieutenant Johnson lived there during part of the time he 
was there, too? — A. Lieutenant Johnson took the quarters when I 
left there in June: in fact, he took them a little wdiile before I left 
there. 

Q. So for a short time his family and yours occupied quarters 11 
and 12 together? — A. Yes, sir, 

Q. But for a considerable period before that you had occupied 
them by yourself? — A. Yes, sir. 

Q. Did you use both sides of the house? — A. Yes, sir. 

Q. When you and your wife were living there alone ? — A. Yes, sir. 

Q. Was there an}' advantage that the baciv bedroom upstairs had 
over the other rooms in the house, so far as comfort is concerned, in 
the sunnner time? — A. The back bedrooms were a good deal cooler; 
you could not sleep in the front bedrooms on account of the heat. 

Q. In quarters 11 and 12 did the staircases run at right angles to 
the front hall way or i)arallel? — A. Ran parallel. 

Q. In quarters 9 and 10 how did they run? — A. Right angles. 

Q, And in alternate sets of officers' quarters; that is, alternate 
double sets of officers' quarters, all the way down the line, as far as 
the commanding officer's quarters, did this same thing hold true, that 
one set would have staircases at right angles? — A. The majority of 
them, but I do not know that all of them did. 

Q. You know such was the case in 9 and 10 and 11 and 12? — 
A. Yes, sir. 

Q. About what was the depth of the front bedroom upstairs in 
quarters 11, approximately? — A. About 10 by 14, I guess. 

Q. Which was the depth, measured from front to rear, the 10 or 
the 14 ? — A. I don't understand you. 

Q. Fourteen across the front section of the house ? — A. Yes. 

Q. And 10 foot .rom front to rear? — A. To the partition between 
the two rooms. 



96 

Q. Then was there a landing or hall way before one came to the 
back bedroom, or was that adjacent to the front one? — A. There is a 
small landing about 4 feet sqnare that yon entered into the front room 
going straight np the steps, and yon tnrned to the right to enter the 
door to the back bedroom. 

Q. So that the back bedroom and the front bedroom have merely 
a partition wall between them for the greater jDart of their width? — 
A. They have a partition running between the two sets of quarters. 

Q. I mean a transverse partition between the front bedroom and 
the back bedroom in quarters No. 11. — ^A. Yes, sir. 

Q. There is no hall way extending up? — A. No hall Avay; nothing 
but a partition made of "" ceiling." 

Q. And about what's the dimension of the back bedroom in quar- 
ters No. 11 ?— A. About 11 by 14. 

Q, Is 11 the depth or width ? — A. Eleven is the depth. 

Q. So that each of these rooms is about 14 feet wide from east to 
west, and the front one about 10 feet deep and the rear one about 11 
feet deep ? — A. Yes, sir. 

Q. Did the stairway leading from the ground floor to the second 
story, in quarters No. 11, start on the ground floor in the rear part of 
the hall and then run towards the front of the house, or vice versa? — 
A. It started in rear of the part of the house at the back door entering 
the room before you went into the kitchen. 

Q. And thence inclined? — A. Entered at the partition of the two 
upstairs rooms. 

Q. So that it ran from the lower floor to the second floor in a 
direction inclining towards the front of the house ? — A. Yes, sir. 

Q. So one would have to go to the rear of the hall, then turn to go 
upstairs? — A. Yes, sir. 

Q. Now, the partition wall between quarters 11 and 1'2; was that 
a sound-proof wall, or not? — A. The partition between quarters 11 
and 12 on the ground floor was plastered, two coats of plaster both 
sides. I mean by that two coats of plaster on 11 side and two coats 
of plaster on 12 side, with 2 by 4 uprights, and laths on both sides; 
and the partition upstairs was " ceiling," about one-quarter inch by 
about 4 inches wide ; just common ceiling. 

Q. I will now hand to you, Mr. Leckie, certain diagrams marked 
" W," "X," " Y," and " Z," and ask you to please state to the 
court what these diagrams are and by whom they were made. — 
A. Diagram '' W," made by myself, and it shows the quarters Nos. 

11 and"l2. Fort Brown, Tex., first floor 11 and 12; letters indicate 
doors, numbers indicate windows; scale. C feet equal to about 1 inch, 
" X " represents second story of quarters 11 and 12, Fort Brown, 
Tex.; letters indicate doors, numbers indicate windows; scale, 6 feet 
to an inch. " Y," floor plan, first story, quarters 9 and 10 ; letters 
indicate doors, numbers indicate wandoAvs; scale, G feet to 1 inch. 
Drawn by me. '" Z " indicates second story to quarters 9 and 10, 
floor plan; letters indicate doors, numbers indicate windows; scale, ^- 
feet to 1 inch. Drawn by me. 

Q. Quarters Nos. 11 and 12 were practically the same in construc- 
tion and arrangement of rooms, were they not? — A. Yes, sir; with 
the exception that quarters 11 had a bathroom upstairs and quarters 

12 did not. The bathroom of 11 w^as taken from part of the front 
room — partitioned off from the front room upstairs. 



97 

Q. Durinof your occupancv of this lioiisc did you keep the partition 
door locked between tlie two l)a('k InMh-oonis, or not? — A. Xo, sir. 

Q. Was that kept wide open chirino- the summer time? — A. It was 
kej)t open durino- the sununei' time, as a ride. 

Q. AA^as there any key to this, so far as you know? — A. There were 
hitches on both sides. 

Q. You don't remember whether there was a lock on it or not? — 
A. There Avas a lock; I don't know whether there was a key to it 
or not. 

Q. You never saw a key to that lock? — A. I don't remember. 

Q. And downstairs there was a door in the partition between 11 
and 12, in the one-story addition to the house, just after you left the 
two-story part of the house ; is that not correct?— A. There w^as a door 
that entered the kitchen to No. 12 from a little room that had the 
ice box in it for No. 11 ; the ice box was usually kept there. 

Q. So the way to go from No. 11 to No. 12 downstairs would be 
to go through this door, and upstairs the only means of communica- 
tion was A. Between the two back bedrooms, 

Q. Could you hear from one side of the house to the other Avhat 
was going on in the other side — conversation, singing, etc.? — A. If 
the wind was not blowing and it was quiet you would know some one 
was talking, but you could not understand the conversation. 

Q. That is downstairs? — A. Downstairs. 

Q. But upstairs, where there was only a board jiartition between 
the two back bedrooms of this part of the house, that did not make 
as great an obstacle to the carriage of sounds as an oi-dinary plas- 
tered wall between rooms, did it? — A. No. 

Q. On a still night, wdien there was no wind blowing, would 
knocking on the front door of No. 11 or No. 12 be heard equally well 
in either of the second-story back bedrooms? — A. If the doors w^ere 
open I think it would. 

Q. The depth of the front hall, from front to rear, is what ? — 
A. About 24 feet. 

Q. And about how far is it from the front door to the foot of the 
front stairs?— A. About 20 feet— 21 or 22. 

Cross-examination by the Accused: 

Q. Mr. Leckie, what interruption was there in the ceiling down- 
stairs of quarters 11 and 12? — A. In the ceiling, sir? 

Q. Yes : in the hall ? — A. The hallway is plastered — the ceilings 
for the hallway an^ then the flooring — but there is no building paper 
that I remember. 

Q. I mean it, of course, wasn't extended the entire hallway, because 
there was a stairway; l)ut was there any other interru[)tion? — A. Not 
there, sir. 

Q. This is drawn to scale, as I understand. [Keferring to plans 
drawn by witness.] — -A. No, sir; drawn from memory. 

Q. Approximately? — A. Yes. That shows 12 by 12 those rooms: 
they are either 10 by 12 or 12 by 14: I didn't remember: downstairs 
rooms. 

Q. Just where is the stairway here in No. 12? — A. There's the hall 
to 11; there's the hall to 12; there's the front door to 12. " E " is 
the back door to 12. and "' F " is the back door to 11. [Witness 
indicated on drawing marked " W."] 



98 

Q. You were asked with respect to knocking on the door of quar- 
ters No. 12 being heard in the back bedroom of No. 11, and whether 
or not that woukl be as distinct as heard in that room as if the 
knocking was on the front door of quarters No. 11. — A. Yes, sir. 

Q. What is your estimate of that, Mr. Leckie, again, please? — A. I 
think if the doors are oj)en, sir, it would be as distinctly heard from 
one door as the other — either 11 or 12. If the doors are closed, of 
course it Avould make a good deal of difference, because the frame of 
the house is j^ractically one house, and then that thin partition 
between the two quarters; that is, if the wind was not blowing. 
The wind generally f)revails from the south, and when the wind is 
from the south you would very often be in the back room and not 
hear the front door bell ring. 

Q. Have you ever had that experience of being up in the back room 
and having the doorbell ring or having a knock on the door and not 
heard it? — A. Yes, sir. I have slept through retreat twice; in the 
back room when the wind Avas blowing you could not hear calls. 

Q. How far does that lagoon extend in the back of the sets of 
quarters at Fort Brown east and west with regard to the officers' sets 
of quarters at Fort Brown ? Does it extend in the rear of any of the 
sets of quarters? — A. It extends in rear of all the quarters, sir, except 
quarters marked " B," the small quarters on the river bank. 

At this point, there being a motion before the court to adjourn, the 
judge-advocate addressed the court as folloAvs: 

The juclge-aclvocate would like to know tbe pleasure of the court before 
adjourning as to whether it desires him to summon Corpl. Ray Burdett. I know 
his address, but did not summon him before because he was not one of the men 
who made unsuccessful attempts to waken Captain INIacklin. and I did not know 
until the arrival of Hairston here a few days ago that Burdett had anything to 
do with calling Captain Macklin. I can request the adjutant-general to wire 
for him if it be the desire of the court to have Corporal Burdett here. I should 
have done so myself had he made an unsuccessful effort to call Captain Macklin ; 
but as long as he was successful I did not see the necessity of possibly delaying 
the conclusion of this trial just to wait for a man who did succeed. 

The accused, his counsels, the witness, the reporter, and the judge- 
advocate then withdrew, and the court Avas closed, and on being 
oj^ened the president announced, in their presence, as follows: 

The court wishes the judge-advocate to subpoena Corporal Burdett. 

(The court then took a recess until 2 o'clock p. m., at which hour 
the members of the court, the accused, his coiuisels, the Avitness, the 
re23orter, and the judge-advocate resumed their seats.) 

(Cross-examination, Lieutenant Leckie, continued.) 

Q. Mr. Leckie. in your testimony this morning you spoke of cer- 
tain instances of not having been aroused or had your attention called 
to knocks on your front door AAdiile living in quarters 11 and 12. Do 
you recall any further instances of that fact ? — A. A number of times 
Avhen some one Avould knock on the door Ave Avould knoAv it by their 
cards being left or by an orderly telling me he had been there, but on 
account of the Avind liloAving, being in the back room. I did not hear it. 

Q. Were you stationed at Fort BroAvn a considerable length of 
time? — A. Yes, sir. 

Q. At all seasons of the year? — A. Yes, sir. 

Q. And you are familiar Avith the Aveather conditions doAvn there at 
these different periods of the year ? — A. Yes. sir. 



99 

Q. AVhat is the condition with respect to wind during the month of 
August at Fort Brown? — A. 'J'here are very few days in August that 
tlie wind is not blowing hard. It is so hot in August you can hardly 
stand the heat; you can't sleep, 

Q. Have you found it is impossible to sleej) on an -Vugust night at 
Fort Brown when the wind is not blowing? — A. I could not say 
positively an August night; there have been nights there I coidd not 
sleep on account of the heat, in the upstairs rooms. 

Q, Did you think that in order for anyone to sleep to any degree 
comfortably during a summer's night there it was necessary for the 
wind to be blowing? — A, Unless a norther was up the conditions in 
August — when I was there — it would be necessary to be some breeze 
to sleep in those upstairs rooms. 

Q. Will you please go to the map? On that map, Mr. Leckie, there 
is represented a walk running from the line of officers' (juarters over 
to the line of company barracks. [Indicating walk running from 
quarters No. 9 towards the garrison gate.] Will you please state 
whether or not that walk is correctly located on that map? — A, The 
Avalk is not correctly located. The walk should begin here on the 
right-hand side of the road going out of the garrison, if you went 
straight across parallel to the walk. 

Q. So that a man going from the Elizabeth street gate to quarters 
1> and 10 would always be on the left-hand side of that Avalk. would 
he? — A. Yes, sir; the walk runs — there is the location of the walk. 
[Indicating a line from eastern side of the garrison gate and parallel 
to the walk shown on the map and terminating about opposite the 
west side of quarters No. 8.] 

Q. Are you familiar with the location of the street lights that 
border the walk along the officers' quarters at Fort Brown? — A, Yes, 
sir. 

Q. Will you please locate on that map the nearest street lamp to 
quarters 11 and 12? — A. The nearest street lamp is there, sir. [Indi- 
cating point opposite qmirters marked 8.] Then the next lamp is in 
front of the administration building. [Indicating point opposite 
administration building on east side of road.] 

Q. There is no street lamp between quarters 10 and 11, is there? — 
A. No, sir : not unless it has been put there since I was there. 

Q. You left there when? — A. I left there the 2d of June, and I 
have been there since three times, 

Dedirect examination by the Judge-Advocate : 

Q. Mr. Leckie, during the summer did the evening breeze ordi- 
narily blow up from the Gulf, from a southerly direction? — A. The 
prevailing winds are from the south always. 

Q. On days in midsummer, even when there was no breeze during 
the day. very often a light breeze would spring up in the evening, 
would there not ? — A, Yes, sir. 

Q. And was it not usual for this breeze to die down before mid- 
night ?^A. No, sir; as a rule, the breeze died down a little bit before 
daybreak. 

Q. And was this breeze fairly regular in its velocity, or some nights 
Avould it blow strongly and others just barely blow? — A. Some nights 
it would blow a good deal stronger, but, as a rule, there was always a 
hard wind at night. 



100 

Q. That was during the two summers you were there? — A. Yes, sir. 

Q, These various occasions you have described, when you failed to 
be awakened by people knocking at your front door, or on occasions 
when you believed that people had knocked on your front door, the 
wind was always blowing hard at these times, was it not? — A. The 
wind was blowing. Oftentimes I would be awake — not be asleep. It 
would be in the afternoon or in the morning, but the wnnd w^ould be 
blowing — the hou-e would l^e open. 

Q. Front doors wide open? — A. The front door was open; all the 
doors in the house. 

Q. So that there was a draft right through the house from rear to 
front — a strong draft? — A. Yes, sir. 

Q. Did you ever fail to hear anybody knocking at the front door 
when you were awake in the quarters — in the main part of your quar- 
ters — and when there was no breeze blowing? — A. That I don't know. 

Q. Your best recollection is, however, that you did not or that you 
have? — A. I don't remember any time, when the wind wasn't blow- 
ing, of anyone knocking and my not hearing them if I was in the 
house — in the downstairs part. 

Q, Do you recall any instance of anyone knocking hard at the front 
door and calling your name and your not hearing them, even though 
at the time you happened to be upstairs? — A. No. 

Recross-examination by the Accused : 
Q. What kind of a sleeper are you, Mr. Leckie? — A. I am a light 
sleeper. 

Examination by the Court : 

Q. I understood you to say that on two occasions you slept through 
retreat. Do you mean by that that you had left an order to be called 
at the time and hadn't heard the call, or that you failed to hear the 
gun and the trumpets? — A. I mean, sir, the first thing I knew of 
retreat Avould be the cannon-^the firing of the cannon, the retreat gun. 

Q. Meaning you left an order to be called? — A. No, sir; I did not 
leave any order to be called, but I failed to hear the call, sir. 

Q. I would like, with reference to the staircases there in 11 and 12, 
to ask you in going upstairs, say, in No. 11, when you got at the top 
of the last stair, what do you find immediately in front of you? — A. 
A little landing, sir, about i feet square, I think, sir. 

Q. You are then facing the front of the house? — A. You are facing 
the front of the house then ; yes, sir. 

Q. What's next beyond that landing? — A. That landing? 

Q. Yes. — A. Then, sir, right in front of you going up stairs is the 
door to the front room. 

Q. First the landing, then the door to the front room? — A. Yes, 
sir; a landing there, about 4 feet square, and then the door to the 
front room; and on the right-hand side going up to the landing is a 
door to go into the back room. 

Q. The tAvo doors are there together? — A. Yes, sir. 

Q. Is the same not true of No. 12, except the door to the back room 
is immediately to your left instead of your right? — A. Yes, sir; 
same thing true of No. 12, except the left instead of the right. 

Q. On this landing that you have described, are there any other 
doors on that landing? — A. None but the two, sir, in 11 and 12. 



101 

Q. In that house, qiiarttTs Xos. 11 and 12 ii|)stairs, is there not a 
door that connnunicates from one to tlie other upstair.s? — A, Yes, sir; 
in No. 11 it is: in Xo. 12 it is not. 

Q. In No. 11 upstairs you can go from the back room to the front 

room A. Througli the bathroom. The bathroom is over next to 

the (quarters you used to occupy. 

Q. I would like to ask if there is such a difference between the 
appearance, due to the arrangement of tiie hall, etc., the a[)pearance 
of things in building 11 and 1-2 and the building !) and 10 as to be 
very noticeable; if a man should find himself, for instance, in that 
building, 9 and 10, with the idea that he had entered 11 and 12, 
would he recognize it from the surroundings — in referring to the 
little diagram here? — A. The only difference, sir, in 9 and 10 about 
midway of the hall the steps enter going up; in 11 and 12 you have 
to go back the full distance of the hall to go up the steps, the steps_ 
going from the back room. The doors leading into the front room 
are the same in both quarters, the hall about the same length, and 
the rooms about the same size. 

Q. How about the door to the back room? — A. About located the 
same, sir. 

Q. A man coming into those quarters and going to the door of the 
back room would at once discover his mistake? — A. If you could see 
the stejis, sir, a man familiar with the house would discover his mis- 
take ; a man not familiar with the house would not, not knowing 
which way the steps are located. * 

Q. You don't understand,- If a man knew how things appeared 
in the ground floor of 11 and 12, because the stairway runs from rear 
to front, parallel to the hall, if that same man found himself down- 
stairs in quarters 9 and 10 on his way to the back room, wouldn't 
the location of the stall's, the direction of it, tell him at once he was 
not in 11 and 12? — A. Y"es, sir; if he was familiar with the house, it 
would. If he knew where the stairs were located, it would tell him; 
if he didn't, it wouldn't, because that's the only difference. excei)t the 
location of the door to the back room in No. 11 is on the right-hand 
side of the room facing back of the house and in 9 it is on the left- 
hand side near the window, and there is a little closet in there under 
the steps, and the other closet is in the hall in No, 11, under the steps. 

Q. I was not paying very close attention in describing that walk. 
AATiere is the south end of that walk, the one leading from the Eliza- 
beth street gate ; where does it come out on the road to the south ? — - 
A. This would be the south end of it. [Indicating a point nearly 
opposite the line in prolongation of the west side of quarters No. 8.] 

Q. That walk that's drawn there in front of the administration 
building is right? — A. That's about right, sir; it ought to be a little 
closer to the building. The walk's nearer in here. [Indicating that 
the walk should be indicated nearer the administration building than 
it is shown on the map.] 

Q. If a man came from the road leading out of the post to that 
Elizabeth street entrance — if he came from there and went diagonally 
across to Captain Macklin's quarters, he wouldn't cross that walk at 
all, Avould he? — A. From this road? 

Q. Y>s.— A. No, sir. 

Q. And went straight across the parade to Captain Macklin's 
house, he wouldn't cross any of the cross walks, would he? — A, No. 



102 

sir; except the Avalk here, sir; the walk running from the administra- 
tion building to the guardhouse. [Not shown on the map.] 

Q. Would he cross that road that's in front of the administration 
building? Would he touch that? — A. He could come across this 
road, sir. [Indicating road just south of Elizabeth street gate.] He 
could come into that entrance of the post and come straight across 
instead of taking that turn in the road towards the river — come 
diagonally across and not strike any walk, except this walk in front 
of the house. 

Q. And the Avalk you said from the administration building to the 
guardhouse? — A. Yes, sir; the walk runs clear across here. [Indi- 
cating that walk runs from the administration building to the guard- 
house across center of parade ground.] 

Q. If he went the same way. then, came from the same gate, and 
went to quarters 9 and 10. would he cross any walks? — A. He would 
come across the same two walks. That crosses in there, sir; the road 
crosses right in here. This road, sir, ought to be where that " X " is. 
[Indicating point about opposite prolongation of western half of 
quarters No. 8. intersection of that line and the sidewalk.] 

Q. If a man told you he had been in one of those buildings and he 
went to the other end of the hall doAvnstairs and then went upstairs 
straight towards the front of the building, would you say he had 
been in 11 and 12 or 9 and 10? Which building would you say he 
had been in? — A. I would say he had been in 11 and 12. sir. 

Q. What* was the size of the garrison of Fort Brown on the two 
days you haA'e testified you overslept yourself at retreat ? — A. Three 
companies, sir. 

Q. Will you indicate on the map Avhere the formation for retreat 
took place and which direction it faces, the line? — A. The musicians 
stand in front of administration building facing the guardhouse. 
[Indicating jooint on east side of the garrison road opposite center 
of administration building.] The place marked "A" is the guard- 
house ; they stood about where " X " is. Then the companies were 
in front of their respective Ijarracks. The officer of the day generally 
stood about the center of the three companies, sir. [Indicating a 
point near the end of '' Fort Brown " and in front of B barracks.] 

Q. From your knowledge of the number of musicians present on 
the post at that time. Avhat Avould you say was the strength of the field 
music in that post on these tAvo occasions? — A. From four to five, sir; 
at times maybe six. 

Q. Mr. Leckie — before you leave there — you knew where Major 
Penrose liA^ed ? — A. Only by Avhat I have been told, sir. I know 
where the commanding officer's quarters are. Quarters A, sir. 

Q. About Avhat is the distance from the east end of the command- 
ing officer's quarters down to the west end of quarters No. 12? 
There is no scale on that map. — A. About 400 feet, sir. 

Q. That Avould be about 130 yards?— A. Yes, sir. 

Q. Mr. Leckie. do you remember the front door of quarters No. 
11 at Fort BroAvn?— A. Yes. sir. 

Q. Very distinct recollection of it ? — A. Yes. sir. 

Q. Will you please describe it to the court? — A. It Avas an inch 
and a half panel door. Avith tAvo panels: the loAver panels Avere about 
18 inches high, and the upper panels filled the door. Avith the excep- 
tion of about 2 feet. 



103 

Q. Was it Avhat you would call a heavy or a very light door? — A. 
It Avas a heavy door, sir. 

Q. Was the front door of quarters No. 12 siinihir to that in No. 
11? — A. Same thino;. >^ir; same material and irotten out at the same 
time. 

Q. Were they double or sinole dooi's^ — A. Sin<rle doors, sir. 

Q. Did you ever have occasion Avhile there in (juarters 11 and 12 
to call to anyone on the inside of the house while the front door was 
closed — to call through the front doors to them!' — -A. Not that I 
I'emember, sir. 

Q. Do yon recall anybody ever calling to you through the closed 
doors? — A. No, sir. 

Q. Would it have been practicable for them to have done so? If 
you had been on the lower floor, would you have been likely to have 
heard them? — A. If I had been on the lower floor? 

Q. And aAvake. — A. Yes. sir; if they had called loud enough, I 
would. 

Q. HoAv about if you had been uj)stairs? 

By the Judge- Advocate. May it please the court. The witness has 
stated that he had no recollection of ever having had such an experi- 
ence. I think it is j^retty much a matter of opinion, unless it is on 
the ground of expert oiDinion. but the prosecution will make no 
objection to the cjuestion. I will not make any formal objection. 

By a Meaibek. I will withdraw the question. 

Q. I understand from several answers you have given, Mr. Leckie. 
that on two occasions you slept through retreat ? — A. Yes, sir. 

Q. When the field music sounded the call in front of the admin- 
istration building? — A. Yes, sir. 

Q. You were in quarters No. 11 at the time? — A. Yes, sir. 

Q. Slept upstairs in the back room ? — A. I slept in the back room 
upstairs in 11 and 12. part of the time in 11 and part of the time in 
12, Avhile I Avas there. 

Q. Do you remember what time of year that was? — A. The first 
time, sir, was in September, I think, right after Ave got to Fort BroAA'n 
in 1903. I don't remember the next time, Avhat time of year it Avas, 
sir. 

Q. The AvindoAvs Avere open, Averen't they?^A. Yes, sir; the Avin- 
doAvs Avere open to the house ; it w^as Avarm Aveather, a Avarm day. 

Q. Do you knoAv Avhether the front door Avas open or not on these 
occasions? — A. I could not say positiA^ely the front door was open, 
sir. I think it Avas, from the fact that the front door stayed open 
all the time in Avarm Aveather, Avith the screen door fastened. 

Q. Mr. Leckie, hoAv long had you l)een asleep each time? — A. I 
don't knoAv how long. 

Q. More than half an hour^ — A. Retreat is about (> o'clock, sir. 
and I must have gone to sleep some time betAveen 4 and G. 

Q. Is there a railing, Mr. Leckie, separating the porch of No. 11 
and 12 quarters? — A. No, sir. 

Q. There is no railing? — A. No, sir. 

Q. Is there a railing separating the porch of No. 9 and 10? — A. 
Doctor Church put a railing on the east side of the j)orch and in 
front of it. I don't knoAv whether he put a railing sej)nrating it or 
not. I don't thiidv he did, sir. 

Q. I don't understand the stairs in No. 9 ami 10 — where thev begin 



104 

or how the}' run. I do understand 11 and 12 from the way you 
describe it. (Witness describes on diagrams Y and Z position, etc., 
of staircases.) 

Q. In approaching 11 and 12, or 9 and 10, is there anything on the 
porch of either house to malve a man readily distinguish one door 
from the other; any railings or posts or color of the house or any- 
thing? — A. No, sir; all the houses are painted the same color. 

Q. Is there nuich difference in trees in front of the quarters, or are 
there trees? — A. There is a difference in them, sir, but they are all 
the same kind of tree and of about the same size. 

Q. Was there any difference last summer in the vines, or anything 
of that kind, on the porches there which would readily distinguish 
them? — A. Not up to June 2, 1906, sir; I don't know about after 
that, whether there were any vines planted or not. 

Q. I would like to ask about lights on that entire parade ground, 
both in front of the officers' quarters — all of the lights, in fact. Can 
you give the court an idea of about the number of them, the fre- 
quency with which they occur, and the effect of the light? For 
instance, would there on a very dark night be sufficient light to light 
up the post? — A. The whole post, sir? 

Q. Light it up so you could see plainly?— A. No, sir. There is a 
light here, sir [indicating point near the sidewalk, opposite west side 
of quarters No. 8], and then a light right in there [indicating point 
near sidewalk opposite center line of quarters -3 and 4]. I think, but 
I am not positive, there's a light between the commanding officer's 
quarters and quarters 1, along in there, sir. I think — I am not posi- 
tive. 

Q. Then there are not more than three lights on that line? — A. 
A. About three, sir. x\nd then the next one is over here. [Indicat- 
ing intersection of road running in front of officers' quarters and 
the road running in front of guardhouse. ] And then on the center 
of this walk, sir — center of the parade — there's a light. [Indi- 
cating sidewalk shown on map as running from betAveen barracks 
B and D towards quarters No. 9.] There's a light in front of 
the administration building. [Indicating a point opposite center of 
building and on east side of road.] Three lights at the gate, sir, 
one over the gate at the walk, and two at the big gate. [Indicating 
Elizabeth street gate.] These lights, sir, are the same lights that 
were afterwards put up in the new cavalry and artillery post — street 
lamps. 

Q. Coal-oil lamps? — A. Yes, sir; and this light at the south end 
of the walk coming across the parade, between quarters 8 and 9. threw 
no light at all at quarters 11 and 12. 

Q. And there's no other light between that house and that lamp— 
that's the nearest light to it? — A. That's the nearest light. 

Q. How about the l)arracks? Wasn't there some lights in front 
of the barracks?— A. In front of these — used to be L Company 
barracks, sir — there's a light there. [Indicating point near walk on 
south side of barracks marked C] About opposite the center of the 
barracks. There's a light in there, sir. [Indicating point near east 
side of road between barracks marked B and D. That is all of the 
lights. 

Q. The post was lighted, was it, Mr. Leckie, according to the 
schedule approved for that post? — A. Yes, sir. 



105 

Q. All the lifjlits Avero up and liirlited. :iiithoi'i/e(1 ? — A. Yes, sir; 
the li<>lits in fi'ont of the oiiai-dhonsc and li<;ht <»vc'i' in fi-ont of the 
hospital. 

Q. That Ijoin*:; the rase, did yoii consider that the post was ^vell 
lighted on a dark night? — A. No, sir. There were some other lights, 
sir, in the upper end — near the corral, and othei' places. 

Q. Suppose 3'ou were standing in front of quarters No. 11 and 12 
there at night — dark night — could you look across the parade ground 
and. l)v the light given hy the street lanij) which you said w-as about in 
this position | indicating point opposite west end of B Company l)ar- 
racksj— could you distinguish people j)assing along that road — for 
instance, could you state whether a man going along tliere was a 
soldier or civilian, and, if a soldier, whether he was an officer or an 
enlisted man? — A. No, sir. If a man was directly in front of that 
light I could tell the object, and I believe I could tell it was a per- 
son, but don't believe I could tell whether a soldier or civilian. 

Q. Are you nearsighted — are your eyes normal ? — A. I think so. 

Q. What is the distance across tliere, Mr. Leckie, about? — xV. 
About ^^00 feet across there. 

Q. About 100 yards?— A. Yes, sir; more than that. About 100 
or 1:25 yards to that light. Oh; that light, you mean ? That would 
be 150 or ICO yards, sir. 

Q. I meant under that light — person coming along that road. — A. 
From in front of quarters No. 11, the walk in front of quarters No. 
11, to the light on the Avest end of B barracks, I believe would be 
150 or 100 yards. 

Q. Now, from that same light to the east end of the commanding 
officer's quarters— northeast end of the connnanding officer's quar- 
ters — about what would be that distance, approximately? — A. Be 
about — pretty close to 300 yards, I should think, sir. 

Q. You don't think that map is accurately drawn, then ( — 
A. No, sir. 

Q. Mr. Leckie, under the circumstances as just stated — a man pass- 
ing under one of those lights — could you see if he had on a saber? — 
A. If he was right under the light. Captain, you might notice the 
bright object. I don't think I could tell whether it was a saber or 
a piece of metal, or what it was. 

Q. If it was after " check " and you were sentinel on post and saw 
a man at that light with a bright object, who would you think it 
was? — A. I would naturally think it was an officer or sergeant-major. 
I would think from the conditions it was an officer. 

Q. What officer? Any particular officer? — A. I should think, if I 
was a sentry, that it was the officer of the day coming around for 
inspection. 

Q. And if you knew he was out inspecting what would you 
think? — A. I would think it was the officer of the day. A sentinel is 
always looking for the officer of the day. 

Q. If you were standing very near quarters 11 and 12, in conversa- 
tion, say, with the officer of the day, and he left you and w^alked over 
towards the barracks, could you follow him entirely across the parade 
and see between which barracks he went, with the" conditions as sup- 
posed? — A. Could I see towards which barracks the officer of the day 
went ? 

Q. If you were talking to the officer of the day — if you were sentinel 



106 

on that post, on the walk near 11 and 12 — and the officer of the day 
left you and struck out across the parade ground towards the bar- 
racks, could you continue to distinguish him until he passed beyond 
the line of barracks on a dark night with the conditions as you de- 
scribed? — A. And not pass under that light? 

Q. Not pass under that light. — A. No, sir; I don't think I could. 

Q, Between B and C Company barracks, for instance?" — A. I don't 
think I could ; not unless he went under some light. 

Redirect examination by the Judge- Advocate : 

Q, If you were sentinel on No. 3 post and walking in front of the 
officers' quarters, and had seen the officer of the day just a few moments 
before leave his^ quarters and start across the parade ground, don't 
you think it is possible for you to catch him at a sufficient number of 
places — that is, where he would cross between you and some one of 
the lights on the other side of the parade — to enable you to judge 
approximately the direction he was going, towards which particular 
barracks? — A. Is No. 8 post up and down the officers' line? 

Q. Yes. — A. Well, there is only one light between the officers" line 
across the parade to the barracks; there would be a light in front of 
the guardhouse and a light in front of the administration building on 
this walk. 

Q. Very good. But if the officer of the day left quarters No. 11, 
walked over to the point near the end of the name '' Fort Brown '" on 
the parade ground, stood there and received the reports, you could 
identify hiin then as the officer of the day, could you not? — A. On a 
dark night ? 

Q. If you heard liim receive the reports there, would you not 
naturally believe it was the officer of the day? — A. I would naturally 
believe it was the officer of the day. 

Q. And then, if you were in front of the officers' quarters and he, 
instead of coming towards you, apparently went across the parade 
ground — unless you saw him pass between you and the light at the 
west end of B Company barracks, or l)etween you and the light oppo- 
site center of C Company barracks, would you not suppose he went 
between B and C (\>mpany barracks? — A. I don't know. 

Q. Or in that direction? — A. I couldn't say; it was too dark for me 
to know where the offi.cer of the day was going. 

Q. If you were paying especial attention to the movements of the 
officer of the day, and you were somewhere along the middle of the 
line of officers' quarters, and the officer of the day was in the middle 
of the parade ground and started away across the parade — if he did 
not pass between you and this light at the west end of B Company 
barracks, or between you and the light in front of C Company bar- 
racks, and did not come towards you, would it not seem to you that 
he must, instead, have gone in the general direction of a line leading 
between B and C Company barracks? — A. I would think he would 
either have gone between B and C Company barracks or gone in B 
Company barracks. 

Reexamination by the Court: 
Q. Please point out again the outside lights around Fort Brown: 
{'.round the parade ground. ^A. One light here, south end of the walk 
coming across the parade entering from the gate. Another light be- 



107 

Iweon — somk^wIkto noar quarters 8 and 4^1 think itVa light between 
I'oniinandiii*]: oilicer's (jiiai-tcis and quarters 1. There's a light in 
front of the guardhouse. Light at the hi-idge — little bridge that 
goes across to the hospital. A light in front of the hospital. A light 
in front of barracks marked C, and a light between barracks marked 
B and the right-hand side of the road going out of the post — the east 
side; and one in front of the administration building. Two lights 
(-ver the gate, one on each side of the main gate, the big gate, and 
one over the small gate at the walk. All other lights are back in the 
old post, around in the corral and ])oints up in the old post. 

Redirect examination by the Jri)(;i>Ai)vocATE: 

Q. Was there not also a light in the middle of the parade ground, 
near the sidewalk? — A. Yes, a light about the center of the parade on 
the walk rumiing from the entrance at the gate to the officers' 
(Quarters. 

Q. Was there not a light near the other sidewalk running from C 
Com])anv barracks to quarters "2 and 3? — A. No. 

Q. Positive of that?— A. Positive. 

Q. Those lights -that were near the officers' quarters, you have 
spoken about them as being between quarters "A" and '' 1," for in- 
stance; do you mean actually between the quarters or on the west side 
of the sidewalk, opposite the interval between these (luarters? — A. 
The walk runs east and west. I should have said they were on the 
south side of the walk, between the (|uarters "A"" and " I." 

Q. That was the case in all those street lamps in front of the officers' 
quarters; they were over neal' the sidewalk, were they not ? — A. They 
were right at the sidewalk. 

Q. Yon say your impression is there was a light betweiMi the com- 
manding officei'*s quarters and quarters marked No. 1 i — A. Yes, sir. 

Q. And then there was aiiotlier light between the quarters marked 
8 and those nuirked 4? — A. A light right in there somewhere, in 
front of those quarters. May have been in front of -1 and 5, or some- 
where along in there. [Indicating any place between 5 and 3. | 

Q. 8o your recollection as to tho^e lights is somewhat hazy, is it 
not? — A. 'No, sir. 

Q. Yon are sure, however, there are no lights down near quarters 
11 and 12, or were none at the time you were situated there? — A. I 
know positively there was not. 

Q. And none was ever kept burning there during the time you were 
there? — A. No street lami)s of any kind. 

Q. With regard to the front door of quarters No. 11, you said that 
was a heavy door. Do you mean extraordinarily heavy, or just such 
a door as you lind here? — A. The framing of tlie door was '2-inch 
stuff, the panels were an inch and a half. 

Q. Do you mean this door was unusually heavy, or was an ordi- 
narily heavy door? — A. It was not unusually heavy: it was a heavy 
door. 

Q. Was there any hand railing separating the veranda of (]uarters 
No. i) from the veranda of (piarters No. 10? — A. No: it wasn't. 

Q. Are you sure that there was none l)etween the veranda or porch 
of quarters No. 11 and quarters No. 12? — A. I am sure there was not. 

Q. Are you positive that there has never, since the time you lived 
there, been a hand rail separating the porches of the last two quarters 



108 

mentioned? — A. Tliere may have been a rail put there after I left 
and taken away before I went back again. There was no rail when I 
went there the last time — in March. 

Q. If I Avonld show yon a photogTaph taken a few months ago, and 
satisfy you that it was taken of quarters No. 11 and 12, which showed 
there was a railing there, would you still care to make the same state- 
ment that there was none there ? 

By Associate Counsel. May it please the court: In justice to the 
witness, I Avill say he need not accept that admission in that question 
as correct, if, as I take it, these are the photographs referred to. 

By Witness. Shall I answer the question? 

By Judge-Advocate. If it has been objected to, there is no need 
for your ansAvering that question. How long is it, however, since 
you were there ? 

A. I w^as there in Maich. 

Q. Did you inspect these quarters particularly at that time? — A. I 
was in the quarters at that time. 

Q. So von would have noticed, then, if there had been any hand 
rail?— A.^ I would. 

By the Judge- Advocate : I desire to state to the court that I was 
laboring under the impression there was a hand rail between there; 
it looked so in a photograph I myself took of these quarters, and I 
am not sure. In fact, I think now it is not a hand rail. It is 
photograph marked No. 4, which was identified by Mr. Grier as being 
a photograph of some one of the double sets down there, although he 
was unable to state just which one. 

Recross-examination by the Accused : 

Q. Do you recognize that photograph, Mr. Leckie? [Handing 
Avitness photograph marked for convenience '' No. 1,'' already in evi- 
dence as Exhibit 1.] — A. Yes, sir. 

Q. Upon close examination, does it bear out your testimony with 
respect to that walk running north and south from company barracks 
to officers' quarters, and the location of the lamp with respect to that 
walk? — A. The photograph does not show the walk, sir. 

Q. Look at it closely and see if you notice any distinction. — 
A. There is a walk running from the administration building towards 
the guardhouse, but I can't see any walk running from the entrance 
of the post towards the officers' quarters. 

Q. Do you see a lamp-post? — A. That one lamp-jDost, iron post, 
Avas put there when I was quartermaster. 

Q. Will you notice the coloring of the ground just below that lamp- 
post, and at the point where it intersects the officers' line? Is that 
coloring similar to that Avalk you described running from the admin- 
istration building to the guardhouse ?— A. No, sir: that Avalk's a 
red and yellow^ brick walk. 

Q. You don't think this line shows that A. This picture was 

taken slanting; there is too large a difference betAveen the lamp-post 
and the quarters. 

Q. You could onlv fix that Avith reference to that lamp-post ; the 
walk?— A. Yes; that's all, 

Q. Mr. Leckie, is there any pointed difference betAveen qmirters 9 
and 10 and 11 and 12 that AA'ould strike the eye of a man at night, 
from the outside? — A. No, sir. If I mav state an instance that shoAvs 



109 

no difference in the houses: In forwarding report required by the 
quartermaster-general, which required the dimensions of the quarters 
and also a photograph of the different buildings, there were only 
three pictures taken for the officers' line — one for the commanding 
officers' quarters, marked A; one for quarters from 1 to 12, and one 
for quarters B. Quarters from 1 to 12 are the same, with the excep- 
tion of quarters 3 having an extra room on the east side, in their 
outside appearance. 

Q. Would a man previously unfamiliar w-ith the interior construc- 
tion of either set of quarters — 9 and 10 or 11 and 12 — be able to 
know, after he had come out of them, which set of quarters he had 
been in? 

By the Judge- Advocate. I object to that question as being purely 
a matter of opinion. 

By Associate Counsel. I withdraw it, may it please the court. 
That's all the examination. 

Reexamination by the Court: 

Q. Does the situation of quarters 11 and 12. at the end of the 
officers' line, make it any different from the others as to locating it? — 
A. It would in the daytime, sir. A dark night it is very hard to tell 
that B quarters are smaller or any different in construction from the 
other quarters, but in the daytime there is a road running between 
quarters 12 and quarters B. 

Redirect examination by the Judge- Advocate : 

Q. As to a matter of fact, Mr. Leckie, does not the road running 
southward from the vicinity of D Company barracks towards the 
officers' line — does not that strike the road that runs along in front 
of the officers" quarters at a point just about in front of quarters 
11 and 12? — A. Yes, sir. 

Q. vSo that that in itself would be a means of indentification of that 
building in distinction from buildings 9 and 10 or 7 and 8? — A. 
Right in here, sir. are trees, trees that would throw a shadow, and 
trees alon^ here; I have come across here at night and would not be 
positive ot quarters 11 and 12 until I was right near. 

Q. The road comes in there, does it not? — A. The road comes in 
here and turns in front of the officers' quarters, and another at an 
angle betw^een 12 and B. 

Q. Is there any other officers' quarters along the line that is so 
situated with reference to roads? — A. Xo, sir. 

Q. And is it not a fact that the light in front of the administra- 
tion building on the east side of the road is opposite quarters Xo. 11, 
so that would be another means of identification ? — A. That light in 
front of the administration building does not give any more light 
than the one over here. 

Q. I am not talking about the amount of light given, but the fact 
that such a light exists in front of these quarters would serve as a 

means of telling A. The light being over there, you would know 

you were on the end of the line next the river, not in front of the 
commanding officer's quarters, but you would not know you were in 
front of 9 or 10 or 11 or 12 unless a man stopped and studied it out. 

Q. The appearance of that small house, B, in daytime is entirely 
different from the rest? — ^A. Oh, yes. 

1643—07 ii 8 



110 

Q. And at night would not the fact that it is a low house and not 
a two-story house be apparent? Would you see the outline against 
the sky? — A. A dark night — these quarters are one story and a half 
high, and B quarters are a story and a third — and a dark night you 
can not tell the shape of the house. A light starlight night, of course, 
3^ou could. 

Q. A man, however, who was accustomed to the surroundings 
there and who — did you ever have any trouble in finding your own 
house at night? — A. There have been times, late at night, when I 
Avould come across, I would not know whether I was in front of 9 and 
10 or 11 and 12. The same conditions prevail now in the upper post 
here as to quarters; a man has to be positive about his quarters to 
know what quarters he is going into in the dark. 

Upon motion of a member, the accused, his counsels, the reporter, 
and the judge-advocate then withdrew, and the court was closed, and 
on being opened the president announced, in their presence, as fol- 
lows : 

The court desires to recall the witness Private Hairston for further examina- 
tion. I understood j'ou had some other witnesses, have you, Mr. Judge- 
Advocate? 

By the Judge-Advocate. May it please the court, I did expect to 
call Sergeant Taliaferro and Corporal Madison again, in view of the 
recent evidence showing ditferences in the interior construction of 
these houses at Fort Brown, and question them a little further as to 
the location of the stairways. That is all. 

By the President of the Court. All right, Mr. Judge-Advocate, 
call them in your ow^n order. 

(The court then took a recess until 3.30 o'clock p. m., at which hour 
the members of the court, the accused, his counsels, the reporter, and 
the judge-advocate resumed their seats.) 

The judge-advocate addressed the court as folloM^s: 

Ma.^i it please the court, I have Sergeant Taliaferro here as the next witness, 
but in view of the fact that the reporter has more work on hand now than is 
possible to get out this afternoon and possibly to-morrow morning. I request the 
court, if it suits its pleasure, would adjourn until to-morrow morning, on 
account of the reporter more than anything else. 

The court then, at 3.40 o'clock p. m., adjourned to meet at 9 o'clock 
Friday morning, April 19, 1907. 

Roger S. Fitch, 
First Lieutenant^ First Cavalry^ Judge- Advocate. 



• Headquarters Department of Texas, 

San Antonio., Tex.., April 19^ 1907, 

The court met, pursuant to adjournment, at 9 o'clock a. m. 

Present: All the members of the court and the judge-advocate. 
The accused, his counsels, and the reporter were also present. 

The reading of the proceedings of April 18 was dispensed with. 

The President. A member of the court asked to have the testimony 
read before this witness is called, regarding the occupation of the 
houses. I think it is the testimony of Lieutenant Grier. 

The Judge- Advocate. Yes, sir. I have the pages marked. 



Ill 

Thv President. Very Avell; if tlu're i^ no objection. [)le;ise read it. 
The JuiKiE-ADVOCATE. On j)a^e 5 of the couit-niartnil record ap- 
pears the following, under the direct examination of Major Penrose: 

Q. Will you kindly point out on the map. Major, tbe bouse occupied by each 
officer of tbe [lostV — A. Building marked "A" I occupied; :^. Captain Lyon; 5, 
Lieutenant (Jrii'r; !t, I l)elieve — I am not sure wbetlier Lieutenant Lawrason or 
Lieutenant Hay. or both lived in tbe same bouse, I think be was in '.) and Hay 
was in 10 ; Captain Macklin lived in No. 11. 

On page 49, however, of the cross-examination of I^ieutenant (irier 
is the question : 

Q. Who occupied tlie (luarters \o. '.► at Fort BrownV — A. Lieutenant Hay. 

On page 50: 

Q. Who occupied (piarters No. 10 at Fort Brown? — A. Lieutenant Lawrason. 

Then, in Lieutenant Lawrason's testimony, direct examination, 
page 55 : 

Q. What was the number of the quarters occupied by youV — A. No. 10. 

So that Major Penrose \s answer was in error merely as to whether 
Lieutenant Hay or Lieutenant Lawrason occupied quarters 9 or 10. 
It should be just the reverse. 

A ME:\rBER. Then, I understand "A" was occupied by Major Pen- 
rose; quarters 1 and 2 were not occupied, so far as the record shows; 
No. 3, Captain Lyon; No. 4, vacant; No. 5, Lieutenant Grier; No. 6, 
vacant ; 7 and 8, vacant ; and 9, Lieutenant Hay ; and 10, Lieutenant 
Lawrason; and 11, Captain Macklin. 

The Judge-Advocate. Yes, sir. The prosecution desires to recall 
Sergeant Taliaferro to emphasize certain points. 

Sergt. Maj. Spottsavood W. Taliaferro, of the Twenty- fifth In- 
fantry, being reminded that he was still under oath, further testified, 
as follows : 

Redirect examination by the Judge-Advocate: 

Q. Sergeant Taliaferro, when you were sent b}^ Major Penrose to 
awaken Captain Macklin earl}^ on the morning of August 14, 1906, 
did you go directly to his quarters or to the quarters you believed he 
occupied ? — A. I Avent directly to the quarters that I believed he 
occupied. 

Q. And are you absolutely certain as to which quarters those 
were? — A. Yes, Sir. 

Q. What Avas the position of the house to Avhich you Avent with 
reference to the officers' line? — A. It Avas the first set of quarters on 
the officers' line after leaving the administration building. 

Q. That is, it was the extreme Avestern set of quarters? — A. Yes, 
sir. 

Q. Now, when you entered the hall of this first building — quarters 
No. 12 — and after you had rapped and called him, you stated that 
5'OU went upstairs? — A. Yes, sir. 

Q. Please state where you went to go upstairs. — A. I Avent to the 
rear of the hall Avay and entered the stairs from the rear — and the 
stairs ran from the rear towards the front. 

Q. So that Avhen you got on the second story you Avere nearer the 
front of the house than you Avere Avhen you Avere at the foot of the 
stairs? — A. Yes, sir. 



112 

Q. And do you know the position of the door you opened up- 
stairs ? — A. No, sir. The door seemed to be open ; I don't remember 
opening any doors at all. 

Q. Are you absolutely positive that the stairway in the quarters 
you first entered and in which you went upstairs ran from the rear 
of the hall upward towards the front of the upper story? — A. Yes 
sir; I am absolutely certain in that. 

Q. Are you positive that the stairway could not have run at right 
angles to the hall way? — A. I am positive it could not have run at 
right angles. 

Q. Now, is there any possibility that you went to quarters 7 and 8 
instead of to quarters il and 12? — A. No, sir; I don't think there is 
any possibility that I went to any other than the first set of quarters 
on the line. 

Q. Did you, in going from the gate to quarters No. 12, follow any 
line of the sidewalk? — -A. No, sir. 

Q. What sidewalks did you cross on the w^ay over there? — A. I 
crossed the sidewalk in front of the officers'*line, of course, until I got 
to the building. 

Q. Was there also a sidewalk running from the administration 
building down to the guardhouse? — A. There was an old pathway 
there, an old walk, covered all mostly with grass. 

Q. It was a brick walk, wasn't it? — A. Yes, sir; I think so. 

Q. Pretty well covered with grass ? — A. Yes, sir ; an old walk. 

Q. So you were west of the sidewalk, as indicated on the map there, 
as running between B and D Company barracks southward towards 
quarters No. 8, weren't you? First, by way of explanation to the 
witness, I desire to state that it was shown by the quartermaster of 
the post, or by an officer who had been quartermaster there' for a few 
years, that this sidewalk is erroneously shown on the map, and should 
run on the east side of the road entering the garrison gate over 
towards quarters No. 8 instead of quarters No. 9 — ^that is, it should be 
a little bit more towards the east. Now, when you left Major Penrose, 
did you go straight across to No. 12? — A. Yes, sir; I went straight 
across the parade ground ; I didn't follow the sidewalk at all. 

Q. You didn't touch that sidewalk at all, did you? — A. No, sir; I 
went out across the parade ground. 

Q. In reaching quarters 7 or 8 you would have to cross that side- 
walk, would you ? Remember, that sidewalk is erroneously shown on 
the ma^D; it should be a little farther up. — -A. I w^oulcl have gone 
right along that walk there, right up to the next quarters there. If 
I had been going to any of the quarters lower down, I would doubtless 
have crossed on that sidewalk. 

Q. But if you had been going to quarters 9 and 10, or 7 and 8, that 
walk would have been about the shortest you could have followed ? — 
A. Yes, sir. 

Q. But instead of that you cut off to the right of the walk and 
went to the quarters occupied by Captain Macklin? — A. Yes, sir. I 
didn't cross the sidewalk. 

Q. Were you ever in other quarters at Fort Brown? — A. No, sir; 
not to my knowledge — not that I remember. 

Q. Are you positive that after you left Major Penrose and had 
passed between B and D Company barracks — say, to the vicinity of 



113 

the brick walk that runs along in front of the barracks — that you 
headed directly for quarters No. 12 and kept to the west of that side- 
walk all the while? — A. Yes, sir. 

Q. And Avhether that sidewalk is shown correctly on the map or 
whether it should more probably be shown still farther to the east 
in ooiiio- in a direct line from the vicinity of the garrison gate to the 
quarters Nos. 7 and 8, you would have to cross that sidewalk, 
wouldn't you? — A. Yes, sir; in going to T and 8 T would have to 
cross it. 

[Associate counsel for the accused indicated the direction on the 
map.] 

Q. That is where the sidewalk should run? — A. Yes; T know ex- 
actly how it runs. 

Q. That is a well-defined walk, isn't it? — A. Yes. sir. 

Q. And there is a street lamp near the center, isn't there? — A. I 
don't remember whether there is a street lamp there or not. I remem- 
ber the walk very well; I know^ Avhich way it runs, just like he is 
pointing there now. [Indicating. line from the east side of the road, 
between B and D Company barracks, southward to a point nearly in 
prolongation of the west sidd of quarters No. 8.] 

Recross-examination b}^ the Accused: 

Q. Come up here. Just point again where the major was standing 
when he sent you over to Captain Macklin's quarters. — A. Right 
about in here [indicating on map a point in the road leading into 
the garrison from Elizabeth street, about midway between the gate 
and the line of barracks]. 

Q. And your rememl)rance is that this is the correct position of 
that sidewalk at Fort Brown ? — A. The correct position of this side- 
walk brings it right down near this side [indicating] — not on the D 
Company side, but on B Company's side of the barracks. 

Q. You think it is on B Company's side of the road? — A. Yes, sir; 
towards B Company's side of the barracks the walk comes down that 
side and not on this side [indicating]. 

Q. Sergeant, if I lay my pointer on the easternmost line of that 
road, and if you would come even to quarters 9 and 10, would you have 
followed that sidewalk at all from the point you mentioned that you 
were Avith Major Penrose, and going over to Nos. 9 and 10 — would 
you have followed the sidewalk at all? — A. I don't know whether I 
would or not. 

Q. I mean is that in a direct line of the sidewalk? — A. No; the 
sidewalk is not in direct line from 9 and 10, according to the position. 

Q. Sergeant, 3'ou still believe that you went into quarters No. 12? — 
A. Yes, sir. 

Q. Does this still represent about your ideas of the situation that 
night ? — A. Yes, sir. 

Q. I am going to read to you a part of your former testimonj' : 

I am not familiar with the entire house at all ; I was never in it before, 
never been in it since. It was a time of great excitement, and I simply rushed 
up the steps, called Captain Macldin. and rushed out. I didn't notice anything 
inside of the building at all. I never thought a moment I would be called and 
questioned as to another house, and it is a matter of impossibility for me to 
give a better description. 



114 

Does that still represent your ideas of the situation ? 

It is a matter of impossibility for me to give any furtlier description tlian I 
have already given. 

A. I did not mean to say that what I had said was not correct, but 
I meant it was a matter of impossibility for me to give any further 
description than I had already given. 

Q. Sergeant, that answer was given in reply to the following 
question : 

Sergeant-Major, please describe the direction you took after leaving the head 
of the stairway to enter the room you went to. — A. It is my impression I simply 
went to my left : I might not be right in that. 

By the President of the Court : The court will want a more full descrip- 
tion than that. Sergeant. 

In answer to that question you gave the answer just quoted. Now, 
Sergeant, when you came into that house to go upstairs, which way 
did you turn? — A. When I came into the house to go upstairs? 

Q. Yes. — A. I went to the rear of the hall way and I went up the 
steps. 

Q. Well, to go up the steps, which way did you turn? — A. Enter- 
ing the hall way, going to the rear, I naturally turned to my left; 
going back that way, then, to go up the steps towards the front, I 
would naturally turn to m}^ left. 

Q. I am not asking how you figure it out noAv. But I want to 
know what your remembrance is, or have you any ? — A. Let me see ; 
I said I went into the room downstairs first ? 

Q. Yes. — A. And I came out of the room dow^nstairs and then 
went upstairs. 

Q. Now, Sergeant, have you any distinct recollection of how you 
went up that stairway at all? — A. Yes, sir; I went to the rear of the 
hall way and went upstairs. The stairs run from the rear towards 
the front. 

Q. Now, which way did you turn after you got to the rear of the 
hall to go upstairs? — A. Why, it would be natural for me to turn to 
the left. 

Q. Don't you know Avhich way you turned? — A. It would be the 
most natural thing to turn to the left. The stairway is towards the 
side of the partition, it is not towards the other side. 

Q. How is it in any of the other houses there, do you know ?— A. I 
have never been in auA' other house, to my knowledge. 

Q. After 3^ou got up to the top of the stairs what was the location 
of the rooms up "there? — A. I couldn't really describe the location of 
the rooms. 

Q. You don't remember how they were situated with respect to the 
head of the stairway ? — A, No, sir. 

Q. You have not" any recollection at all? — A. No, sir; I really have 
none. 

Q. You still feel. Sergeant, that that was a furnished house and 
lighted house that you went into that night? — A. Yes, sir; as I said, 
the impression of everything seemed to me that the house was ready 
for occupants; if it had been empty, no furniture in there at all, it 
would have attracted my attention; naturally, I would have thought 
at the time I was in the wrong place, that nobody lived there; but 
the house being furnished, of course, is what made me think I was in 
the right place. 



115 

Q. Are you pretty sure with respect to the li^rhts in the house? — 
A. Yes, sir; there were li<T:hts in the house. 

Q. Sergeant, do you happen to remember whether either one or 
both doors at the top of the stairs was open? — A. I am not certain 
now whether both wore open or both closed — might have been both 
open. 

Q. You don't remember? — A. I don't remember opening any door 
upstairs, so it must have been open. 

Redirect examination by the Judge- Advocate : 
Q. Sergeant Taliaferro, did you ever go into any of the officer's 
quarters before in which the stairs ran from the rear of the hall 
upward towards the front of the house — did 3^ou ever see that peculiar 
arrangement of the stairs before in any officer's quarters anywhere? — 
A. I don't remember, sir. 

Q. Did that fact impress you as being rather peculiar in that the 
stairway ran just op]:)Osite to the way it ordinarily does in ordinary 
quarters and in ordinary houses? — A. I don't know as I had any 
thought about the matter just at the time — I Avas simply after going 
upstairs, and I saw which waj" to go up. and I simply went on up. 

Questions by the Court: 

Q. AVhen you were told to go over and wake Captain Macklin. did 
you go over in a run or walk, or how did you go? — A. "Well, I went 
as fast as I could, sir. 

Q. You ran ? — A. Yes, sjr. I was not told to go and wake Captain 
Macklin, sir. 

Q. Allien you were told to go over for Captain Macklin? — A. Yes, 
sir. 

Q. Did you run? — A. Yes, sir; I went as rapidly as I could. 

Q. You were in a good deal of a hurry ? — A. Yes, sir. 

Q. Excited? — A. Well, not very much excited, probably a little — 
of course the excitement of the night had not died away. I was 
excited when I was first aroused that night. 

Q. The night was dark? — A. Yes, sir; it was dark. 

Q. Couldn't it have made it pretty easy for you to have gone into 
one of those other quarters there? — A. I don't think so, sir. 

Q. Sergeant, when you went into those quarters, do you remember 
whether you opened the door or not? — A. The front door? 

Q. Yes. — A. Yes, sir; I opened the front door. 

Q. It was closed, was it? — A. Yes, sir. I knocked on the door 
first, and then no one answered, and then I opened the door and 
entered the hall v^&y. 

Q. The door was closed ? — A. Yes. sir. 

Q. You knocked on it and then opened it ? — A. Yes, sir. 

Q. Xow, Avhat set of quarters was that ? — A. That was in the first 
set, what is known as No. 12. 

Q. Just point that out on the map. — A. [Witness here indicates 
building marked " No. 12."] 

Q. All right. Now, did you go into the next set, No. 11? — A. I 
went into the hall — just entered the hall; I didn't go into any of 
the rooms of No. 11 at all. I simiDly pushed the front door open 
and called in the hall way. 

Q. Well, you came out of No. 12 first, did you? — A. Yes, sir; I 
came out of No. 12. 



116 

Q. Did you shut the door after you when you came out, or do you 
remember ? — A. I think I did. 

Q. And then went over to No. 11 ? — A. Yes, sir. 

Q. And do you remember how far you found the door of No. 11 ?^ 
A. I think that was closed also, sir. 

Q. Well, do you remember it ? — A. Yes, sir ; the door was closed. 

Q. It was closed ? — ^A. Yes, sir. 

Q. The door of No. 11, the front door? — A. Yes, sir. 

Q. Did you knock on it ? — A. Yes. sir. 

Q. And then opened it ?— A. Then opened it. and then called in the 
hall way. 

Q. When you came out. do you remember whether you shut the door 
or not ? — A. I think I did. sir. 

Q. You are not positive? — A. There is nothing to make it very 
positive in my mind, only it would be natural for me to close the door 
behind me. I close every door I have opened. 

Q. When going upstairs in No. 12, that quarters you went upstairs 
in, was it light enough so you could see to go up, or did you have to 
feel 3^our way up on account of the dark ? — A. It Avas light. 

Q. So you had no difficulty in going up the stairway? — A. No diffi- 
culty at all. sir. 

Q. You didn't have to feel your way around by the banisters, or 
anything of that kind ? — A. No, sir. 

Q. Where did that light come from? — A. The light that shone on 
the staircase ? 

Q. Yes. — A. It came from the room downstairs. 

Q. The front room downstairs? — A. Yes, sir. 

Q. That door was open, was it ? — A. Yes, sir ; open in the hall way, 
as the light was shining right out on the stairway. 

Q. That was after you had opened the door, was it? — A. Well, I 
didn't open that door that leads in the hall way. I opened the front 
door. 

Q. The door to the room was open, Avas it ? — A. It seems to me the 
door leading from the hall v^ay into the room was open when I 
entered the hall. 

Q. The light that furnished the light to the hall, you say, came 
from the front room? — A. Yes, sir. 

Q. You have also testified that you Avent into the back room before 
you Avent upstairs ? — A. No, sir. I didn't go into but one room down- 
stairs. 

Q. Do you remember that you testified that you called into the 
back room ? — A. No, sir. 

A Me3iber. I would like to have the stenographer read the wit- 
ness's answer to the question of counsel as to how he turned before 
he went upstairs. 

(The reporter referred to his notes of the cross-examination by the 
accused and read therefrom the folloAving testimony:) 

Q. Now, Sergeant, when you came into that house, going upstairs, which way 
did you turn? — A. When I came into the house, going upstairs? 

Q. Yes. — A. I went to the rear of the hall way and I went up the steps. 

Q. Well, going up the steps, which way did you turn? — A. Entering the hall 
way to go to the rear, I naturally turned to my left, going back that way ; then, 
to come up the steps towards the front, I would naturally turn to my left. 

Q. I am not asking how you figure it out now, but what your remembrance 
is. or haA'e you any? — A. Let me see. I said I went into the room downstairs 
first? 



117 

Q. Yes. — A. And I earue out of the room downstairs and then went upstairs. 

Q. Now. Sergeant, have you any distinct recollection of how you went up 
that stairway at all? — A. Yes. sir; I went to the rear of the hall way and went 
upstairs. The stairs run from the rear towards the front. 

Q. Now, which way did you turn after you got to the rear of the hall, going 
upstairs? — A. Why. it would he natin-al for me to turn to the left. 

Q. Don't you know which way you turned? — A. It would be the most natural 
way to turii to the left. The stairway is towai-ds the side of the partition; it 
is not towards the other side. 

Q. Do you mean to state that you went into the room downstairs 
first; do you mean the back room or the front room? — A. It was the 
front room downstairs. 

Q. That is. when you went into the hall? — A. Yes; I only went 
into one room downstairs. 

Q. AMien you went into that room, did you look around for Cap- 
tain Macklin? — A. Yes, sir. 

Q. Then you saw what Avas in the room? — A. Yes, sir; of course 
I saw. 

Q. Well, what was in the room? — A. Well, there wasn't anything 
really that attracted my attention at all. I was simply looking for 
Captain Macklin and didn't see him. I didn't think of anything 
else. 

Q. Well, didn't you see the lamp that was giving this light ? — A. I 
didn't notice it. 

Q. Sergeant, you testified about going up this stairway. Do you 
remenjber, in going up that stairway, whether there was a banister.? — 
A. Yes. sir. 

Q. Ordinary banister ? — A. Yes, sir. 

Q. I understand, then, you to state the stairway was not boarded 
up? — A. Xo, sir; there was a banister — hand railing — that upright 
piece along by the side. 

Q. Then a person going up that stairway could be seen by any- 
body in the hall? — A. Yes, sir. 

Q. All the way ? — A. Yes, sir. 

Q. AATien you were on the stairwa}'^ you could see down in the 
hall ? — A. Yes, sir. 

Q. In seeing down in the hall way, going up the stairs, would you 
have to turn around and look upward, or would you turn to the right 
or to the left to look into the hall ? — A. In going down the hall way ? 

Q. Yes. — A. Simply looking to the left, right over that way [indi- 
cating]. 

Q. This stairway, then, did not have a wall on both sides? — A. 
The stairway did not have a wall on both sides? 

Q. I mean did the stairway have walls on both sides — I mean 
walled up on both sides? — A. The stairway, as I stated before, is 
nearest the partition. Now, you know the hall, of course, and you 
can walk — there is a space betAveen the walls and the stairway that 
separates the other room — right over here is a room, of course [indi- 
cating to the right], and right over here is a partition [indicating to 
the left]. To my right is the room, and then of course there is a 
hall way. 

Q. And then the staircase is in this hall way towards the side of the 
partition, but there is space enough between the stairway and the 
room and the walls of the room to the right for one to walk? — A. I 
don't know exactly how wide it is. It probably ma}' be 3 feet. 



118 

Q. And as you walk into the hall way, walking back towards this 
stairway, did you see the banisters on the stairs? — A. Yes, sir. 

Q. You could see it ? — A. Yes, sir. 

Q. They were not close up with the wall? — A. No, sir. It was a 
hand railing and straight uprights from the steps up to the hand 
railing. 

Q. Sergeant, on this night— the 13th and 14th of August — when 
you went to call Captain Macklin, you are positive you went to No. 
12, the farthest indicated on that map? — A. Yes, sir. 

Q. You are positive also that the lights were burning? — A. Yes, 
sir. 

Q. In the downstairs room and upstairs room? — A. Yes, sir. 

Q. And that that house was furnished — people lived in it? — A. 
Yes, sir. 

Q. You are positive of that? — A. Yes, sir. 

Q. Now, as I remember, you stated in your former examination 
that the next morning you heard that Captain Macklin did not live in 
these quarters? — A. Yes, sir. 

Q. How did you learn that? — A. His striker told me he lived in 
the left side instead of the right — that is, in No. 11 instead of No. 12. 

Q. Did 3^ou learn anything else about No. 12 about that time? — A. 
No, sir. 

Q. Did you learn who did live in No. 12? — A. No, sir. 

Q. Did you learn whether or not it was occupied ? — A. No^ sir ; I 
didn't make any inquiry further than that. 

A Member. I would like for the judge-advocate to read further 
from that record his answers to the same line of questioning that he 
has had now — that is, with regard to the room that he entered down- 
stairs to call Captain Macklin. 

The Judge- Advocate. I read from page To : 

Q. What did you tlieu do? — A. I weut to the building I have jnst indicated 
on the map. 

Q. What number is it on the map? — A. I went to No. 12, and I called 
Captain ^lackliu and knocked on the door. No one answered. I opened the 
door, went into the room downstairs — the front room downstairs — looked 
around, saw no one. I went out of that room. 

Q. Did you call in there? — A. Yes, sir; and I went and called in the hall- 
way also. Then I went upstairs and called upstairs. No one answered. Then 
I came downstairs, and I thought Captain Macklin might be in No. 11, so I 
knocked on No. 11, but no one answered. 

And then he goes on to state further what he did. 

Q. You said you opened the front door when you went in. Do 
you mean by that you opened the screen door or the wooden door ? — A. 
Yes, sir. 

Q. You stated you knocked and then went in. Do you remember 
whether it was the screen door that you opened or the regular wooden 
front door, or both of them, or do you remember? — A. I don't remem- 
ber, really, now, as to the nature of the door. I don't remember 
opening but one door, you know — I don't remember opening but one 
door. 

Q. And whether that was a screen door or not you can not say ? — A. 
I couldn't be positive about that; I don't think it was, though, be- 
cause if it had been a screen door, why, I would have seen the light 
in the hallway before opening the door. 



119 

Q. But do you rciiKMiihcr that you did not see iiny li<^ht before 
oixMiina- tlie door^ — A. I don't icnieniber seein*^ the li<>ht in the hall 
at all until I did open the door. 

Q. Is the same thini; true on the other side— Xo. 11? Do you re- 
member Avhether you opened the screen door and the wooden door? — 
A. I couldn't i)e positive about that, either. 

Q. You just simply remember that you opened the door? — A. I 
remember that I opened the door. 

Q. Yon knocked on the door? — \. Knocked on the door and 
opened it. 

Q. You knocked on the door and opened it, and you don't remem- 
ber and can not say Avhether they were screen doors or Avooden 
doors ? — A, No, sir, 

Recross-examination by the Accused: 

Q. Sergeant, was there anything on the porch of quarters 11 and 12 
that you reniend)er at all? — A. I didn't see anything, sir. 

Q. Did you see a saber there? — A, Xo, sir. 

Q. Did you see a table there? — A. Xo, sir. 

Q. If there had been a table there near the front door of X^o. 12 
would it have attracted your attention, do you think? — A. I don't 
know, sir, whether it would or not; it probably might have and then 
might not — I couldn't tell. It is very ditlicult for me to tell what 
would have attracted my attenticm under such circumstances. I 
could only tell what did attract my attention. 

Q. X'^ow, Sergeant, if a table had interfered Avith the opening of 
that door to Xo. 12, would you have noticed that; would you have 
remembered that? — A. It seems I would, sir. 

Q. Did any such thing as that happen? — A. Xo, sir; it never 
interfered Avith the opening of the door, to my knowledge. 

Q. Sergeant, Avhen you Avent from Xo. 12 to Xo. 11, did you step 
over a railing on the porch betAveen? — A. Xo, sir. 

Q. You just Avalked straight through? — A. Yes, sir. 

(Excused.) 

Charles H. ]\Iai)isox, former corporal of Com])any C, TAventy- 
fifth Infantry, Avas recalled by the prosecution, and being reminded 
that he Avas still under oath, further testified as folloAvs : 

Redirect examination by the Judge-Advocate : 
Q. Corporal INIadison, Avhen you'Avere on the stand before, you 
testified, on pages 108 and 109, as folloAvs : 
Question by Associate Counsel: 
Now. 1 just want you to think a moment, Corporal, before you answer that — 

that Avas Avith regard to the position of the entrance to the stair- 
way — 

now. I just want you to think a moment. Corporal, before you answer that, and 
see if you can remember whether or not that entry to that stairway was to the 
front or to the rear? — A. I can suggest, but I can not give a definite statement. 
Q. AA'here do you think it wasV — A. I think it was in the rear. 

And then, after that, the counsel and the judge-adA'ocate spoke for 
a fcAv minutes ui)on the admissibility of that question. Xoav, I Avould 
like to haA'e you state. Corporal Madison, or can you give to the 
court your impression as to the location of that stairAvay m quarters 



120 

No. 11? — A. I can not give a definite statement, because I don't 
exactly know, but my opinion is tliat the stairway ran up from the 
rear. 

Q. And ran A. To the front. 

Q. To the front of the liouse? — A. Yes, sir. 

Q. Upstairs? Well, now, if, upon opening the front door of No. 
11, on the various occasions on which you had been to Captain 
Macklin's quarters, you walked down the hall way towards the second 
room back, would you have noticed whether or not the stairway ran 
to the left betAveen the front room and the bedroom — sort of cut in 
between the two rooms and run sort of at right angles to the 
hall ? — A. Well, if it had been to my left, between the first room and 
the second room, I might have noticed it, sir; but any farther back 
than that I would not. 

Q. If, however, it had been betAveen the first and second rooms, so 
you would have had to pass right by the foot of it in going from the 
door to the second room back, you would have noticed that, wouldn't 
you ? — A. I might have, sir. 

Q. But don't you think a peculiar construction like that would 
have been noticed by you? — A. '\Miy. if it would have interfered with 
the other rooms I might have noticed it, sir; but I can not give a 
definite statement in regard to that. 

Q. You never went upstairs in that house at all. I understand ? — A. 
I have never been uj)stairs; no, sir. 

Q. And all you can state to be certain is that the stairway began in 
the hall and ran from the rear to the front of the house? — A. Yes, sir. 

Recross-examination by the Accused: 
Q. Corporal, do you remember anything more definite than you did 
the other day with respect to the time that you went into Captain 
Macklin's quarters last, before the 13th of August ? — A. I do not, sir. 

Questions by the Court : 

Q. Allien you went into No. 11, was the front door open or 
closed ? — A. It was open on that night, sir, at the time I went there. 

Q. Was it a screen door or a wooden door? — A. If my memory 
serves me right, I don't remember whether there were any screen 
doors on the quarters or not. I don't remember. 

Q. Did you have to open any door to go in? — A. I disremember, 
sir ; but the wooden door was open. 

Q. What time was that? — A. I don't know what time the firing, 
or whatever it was, taken place, sir. 

Q. Well, how long after the firing commenced? — A. ^Yhy, I sup- 
pose about five or seven minutes, something like that — maybe not 
quite so long — just time enough for me to go upstairs after the racks 
being opened, get my rifle, fall in line, and receive the order and 
proceed. 

Q. "\Anien you came into the hall way in the morning, when you 
brought the sick report to Captain Macklin, could you see the steps 
going upstairs, or was the side of the steps boarded up ? — A. I never 
paid that much attention to the quarters, sir. 

(Excused.) 

The Judge- Advocate. I would like to read to the court a telegram 
which I received yesterday with reference to Private Eogers. Bogers 



121 

is a particularly important Avitness. as lie was a inciiibcr of the ^uard. 
and he was sent to awaken Captain Maclclin after the shootinir of 
August 13 began. It is essential that he be brought here as a witness 
if it is at all j^ossible to do so. I received word from Lieutenant 
Bonnaifon at AA'ashington Barracks, or rather, on Aj)ril 10 T wrote 
a letter to the adjutant-general of the Department of Texas, request- 
ing that a telegram be sent to the Adjutant-General of the Army, 
requesting that every effort be made to serve the subpcenas upon 
Sergeant Ilarley and Private Rogers. The ^ubpo^nas had gone off 
some time before — I am not sure as to the exact date, but on the 10th 
of April, just prior to my writing that letter, T received word from 
Lieutenant Bonnaft'on that PLirley and Rogers had left Washington; 
he was unable to serve the subpcenas. That was the occasion of that 
letter. And on the 11th I learned where these men had gone. Rogers 
had returned to his home in Atchison. Kans. Last evening I received 
the following telegram : 

Washington. D. C. Apr. 18. 
Lieut. Roger S. Fitch. 

J udfK- Advocate. Court-Martial. 

Fort Sam Houston. Tex. 
Followinj; tek'gram just received from conimandiug officer. Fort Leaveuwortb : 
" Reference your telej^ram yesterday. Captain Sievert again visits Atchison 
and offei'ed Rogers transportation to San Antonio, who refused same, saying 
he was going to Boston to-day to join his wife. Believe Rogers is unwilling to 
appear as witness. Papers returned by mail." 

McCain. Adjt. Genl 

Now, inasmuch as Rogers is by far the most important Avitness of 
the prosecution, and it is apparent that he can not be induced to come 
here and testify before the court, I desire to send interrogatories and 
depositions to him, and I have practically completed the interroga- 
tories for the prosecution and desire to know the pleasure of the 
court as to ordering the defense and myself to prepare our inter- 
rogatories and submit them to the court for them to add such inter- 
rogatories as they please. It is absolutely necessary, it seems to me, 
to get something from this witness if we can. Or if the defense is 
willing to admit that if Rogers were to answer the interrogatories 
propounded, that his testimonv would in effect be the same as his 
testimony given on pages 82, 83, 84, ai^l 85, 92, 93, 94, 9T, and 98 of 
the record of the testimony taken before the Senate investigating 
committee — if, as I stated, the defense is willing to grant that his 
testimony would be to the same effect, why, I am willing to let the 
interrogatories go. In that case the prosecution can close by to- 
morrow morning at the latest. 

The Court. How about that witness from Washington ? 

The Judge- Advocate . Unless that witness be regarded as being 
called by the court, the prosecution will close. As I stated before, I 
did not think it essential that he be summoned, and the defense can 
go on with their case. That rests with the court. 

A Me:mber. I want to ask you what assurance you have that you 
would be able to find that man Rogers in order to serve those inter- 
rogatories and get his deposition. 

The Judge-Advocate. The only thing I can do, sir, is to send them 
to the jiroper authorities. I think he has left for Boston. I suppose 
they would have to send them there and through the Department of 
the East, and it would take some time. 



122 

A Me3iber. Can not the attendance of that witness be compelled? 

The Judge- Advocate. May it please the court, the attendance of a 
civilian witness, as probably the court knows, can not be enforced 
when that civilian lives outside of the district. State, or Territory 
Avhere the court sits. We have absolutely no means of getting him. 

A Member. Mr. President, it strikes me that if the depositions are 
obtained under these conditions — -it is stated this man left for Bos- 
ton ; possibly they do not know his address— I do not see that we could 
postpone the session of the court indefinitely for that reason. We 
might never get the man, unless he can be found. 

The Judge-Advocate. Well, the first proposition I have to make 
is to ask the defense whether, in view of the fact that it will doubt- 
less take some time to get the depositions back from this man in 
case he is found, whether they are willing to admit that if placed 
upon the stand he would testify to the same facts as he did before the 
Senate committee a month or so ago, and if they are willing to let 
the court accept as evidence his statement taken under oath before the 
Senate committee I will be willing to omit the sending of the inter- 
rogatories. 

Associate Counsel for the Accused. May it please the court, the 
defense can not make this admission that is desired by the judge- 
advocate. In the first place, we have no assurance that this man will 
testify or that his testimony would be the same as that given and 
brought out before this Senate committee. Moreover, some of these 
witnesses who have testified in this case also testified in the Senate 
committee, and their testimony here differed very materially from 
that brought out in the Senate investigation. As regards the taking 
of this testimony by depositions, we object to any testimony by depo- 
sitions. It seems to us that in this case especially the witness should 
be here. A large part of the evidence consists of exhibits — maps, 
photographs, and matters of that kind — and we object to the admis- 
sion of any testimou}^ where we have not the witness before us, sub- 
ject to our cross-examination. 

The Judge-Advocate. May it please the court, as the court doubt- 
less knows, the ordinary method of obtaining testimony from civilian 
witnesses, residents of States, districts, or Territories other than the 
one in which the court-martial happens to be sitting, is ordinarily 
procured by sending interrogatories and obtaining the depositions. 
It is, as a matter of fact, unusual for such witness to be summoned 
from a great distance, though in this case — -as in the preceding case — 
the defense, like the prosecution, has been allowed very great latitude 
by the court in getting witnesses. Personally, I would much rather 
have this man present to testify before the court ; but inasmuch as 
we can not get him, and can not force him to come, the only other 
way of obtaining his evidence is to send interrogatories, and it is a 
right that the prosecution has, and is not subject to objection on the 
part of the defense. The defense has the right to prepare an}^ cross- 
interrogatories, and if he does not care to do so, well and good; but 
the defense can not object to the prosecution's sending interrogatories 
and getting the testimony of the absent witness in that manner. 

A Member. I w^ould like to ask the judge-advocate a question : I 
suppose, in view of what has come ui^, that you have looked up the 
law on the subject, Mr. Fitch. Suppose this man got the interroga- 



123 

tories, suppose you sent them to him, and suppose he declined to 
ansAver, is there any method to compel him to do it ? 

The Ji DGE-AnvocATE. I know of no method by which he can be 
compelled to appear. A -writ of attachment possibly could not 

A MiniBER. I want to know whether a man can be compelled, in 
Boston, for instance, to answer the questions. 

The Judge- AnvocATE. I believe he can not be compelled to answer 
the questions. And according' to this telegram he is on his way, or 
about to leave Atchison, Kans., to <>;o to Boston to join his wife, and 
it may be for personal reasons — doubtless to avoid a lono- trip down 
here and a long trip back again — and it seems to me if this was sent 
to him he would doubtless be willing to give his testimony and receive 
his fees for same. I do not think it is due to the fact that this man 
is unwilling to testify. 

A ME:\rBER. Are j^on sure about the law. Judge-Advocate, about 
making the witness answer ([uestions by depositions? I was under the 
impression that he would be compelled to answer. 

The Judge- Advocate. A Avrit of attachment, it states very dis- 
tinctly, does not run if the witness is not in the district, State, or 
Territory in Avhich the court-martial sits [reading] : 

A writ of attachment does not rnn beyond the State, Territory, or district in 
whicli the court-martial sits. The testimony of civilian witnesses residing beyond 
such State. Territory, or district will ordinarily l»e taken by deposition under 
the ninety-first article of war : but this can not be done when it is necessary 
that they should be confronted with the accused. In such cases their testimony 
can only be taken on their voluntary appearing before the court. 

A Member. That is not the question. 

The Judge- Advocate. I know it, sir; but there is nothing in the 
Court-Martial Manual that shows that people can be forced to come 
and answer interrogatories when the}'' are in States, Territories, and 
districts other than that in wdiich the court is sitting. They are 
merely allowed the fees of witnesses, and if they refuse to appear I 
believe they can not be forced to do so. 

A Member. Mr. President, I believe I have had occasion to know it 
within the last few months, that in civil courts a man can not be com- 
pelled to answer depositions. So, by analogy, that would be the rule 
with us. if there is no definite law upon the subject. 

The Judge-Advocate. That is my understanding, sir. 

The President. Mr. Judge- Advocate, the court would like to ask, in 
substance, what you expect to prove by that witness — in substance? 

The Judge- Advocate. Well, sir, I expect to prove by that witness 
that right after the shooting began, on the night of August 13, a 
sergeant of the guard — Sergeant Keid — came to him, knowing that 
he Avas a member of Captain Macklin's company — C Company — and 
knew where Captain Macklin lived, and told him to run to Captain 
Macklin's quarters and call him or- aAvaken him ; and that this man 
jumped up at once and started to run across the parade ground 
towards Captain Macklin's quarters; that on the way there he passed 
close to Major Penrose, or heard Major Penrose call to the trumpeter 
of the guards to sound the call to arms, and that the call to arms was 
first sounded while he was on his way to Captain Macklin's quarters; 
that he reached Captain Macklin's quarters, which he identified as 
being the last set of quarters on the officers' row, and that he knocked, 



124 

waked up Captain Macklin, who replied, "All right ; " that this was 
while the firing was still going on, apparently in the rear of C and B 
Company quarters, right in the little alley near the garrison road, 
some place; and that he said he did not know wdiether Captain Mack- 
lin got up or not, but that he replied, "All right," and that he then 
went back and rej)orted to the sergeant of the guard; that Captain 
INIacklin did not come to the guardhouse then, but that the next 
morning he asked him whether he, Private Rogers, woke him up the 
night before, and that he, Private Rogers, told him yes, and that 
Captain Macklin then asked him what he said, and that the witness 
told him he. Captain Macklin, replied, "All right," and that Captain 
Macklin then said probably he thought he was dreaming, that he 
thought somebody awakened him, but didn't know whether he was 
dreaming or not, and that Captain Macklin ascertained from the 
sergeant of the guard that he was the man who was sent as messenger ; 
and that after he had rapped and called Captain Macklin the latter 
replied and said, "All right," and that then the witness told him the 
' sergeant of the guard told him that he must report to the guard- 
house, that he must come to the guardhouse right away, and he said, 
"All right." He said, " I didn't go to his room ; I knocked below his 
room; his room was right up above where I knocked; he could easily 
hear." Asked whether he recognized Captain Macklin's voice — 
whether he knew his voice — he said he did; and that the witness 
returned to the guardhouse while the firing was still going on, and 
the guard was formed when he got there. That is in substance what 
this man testified to. 

Associate Counsel for the Accused. Now, may it please the court, 
I have listened to all this discussion which has taken place with respect 
to the testimony of Private Rogers, and I believe the whole thing 
from beginning to end is wrong. The principle of criminal law, in 
the first place, sets forth that wdien the accused is on trial he is 
entitled to be confronted with the witnesses against him, and the 
only true way that that testimony can be attacked is by cross-exami- 
nation — that is, the only method known to law — and that principle 
is so well regarded in the Constitution of the United States that it 
is contained in the amendments. There are certain features of evi- 
dence that can not come before the court in the way of depositions, 
and there is abundance of authority in all the text-books to show 
that certain matters can not be testified to before any court by 
depositions. If the court please, the identity of a person can not be 
testified to by deposition. You can find a statement of that in our 
own military law — and this particularly is a question of identity. 
The fact that is claimed by several witnesses there at Fort Brown, 
several of them, that they went to the house occupied by Captain 
Macklin, is an important one. They may have been honest in that 
statement and may have been dishonest in that statement. If they 
were honest in the statement, they may have been mistaken as to 
the location of Captain Macklin's quarters. There are many reasons 
why they should be thus mistaken — the conditions attending their 
going there that night, the conditions in the post at the time they 
went, the absolute identity of the quarters as far as outside appear- 
ance is concerned, the unfamiliarity of some of these men with refer- 
ence to where the officers resided at Fort Brown. Now, may it please 
the court, the judge-advocate asked this court that they allow him 



125 

to brftig before tlieni tlie testimony of one. Private Kogcrs, of Com- 
pany C, TAventy-tifth Infantry, who appeared before the Senate. 
We wouki under no circumstances permit that testimony to be pro- 
duced before the court. And then in ansAver to a question by the 
court as to what he expects to prove by the witness, he interjects this 
statement that he has made before this court ; and may it please the 
court, there is no statement that can have no effect on the court — it 
may not affect them weightily, but it affects them in a minor way — 
and it is absolutely improper that this testimony be furnished before 
the court in statement of counsel. We do want Private Rogers, and 
we want him to appear before this court, and we want to subject him 
to the test of cross-examination, and we will make that as rigid a 
cross-examination as we know how to make it. 

A Member. The only thing I Avant to say is, I understood that 
question of the president of the court merely to ask what the inten- 
tion was to prove by this witness, and the statement of what was 
intended to be proved by this witness is very often stated by counsel 
in courts of law, and these statements are frequently made in the 
presence of the jury, I think. And with regard to the matter of 
the deposition, I imagine that if the deposition is taken, of course 
it is taken at whatever value is placed on it as testimony by a jury. 

Associate Counsel for the Accused. May it please the court, T do 
not wish to be misunderstood as making any claim that the question 
that was asked by the president of the court of the judge-advocate 
was in any sense an improper question. It was a proper question; 
but I do object to the lengthy answer on the part of the judge- 
advocate which brings in all the matter to which we have previously 
objected. The answer should have come in some form in which the 
question showed, and its interjection of that testimony before the 
court is what I object to. I feel pretty confident that if this deposi- 
tion did come before the court they would give it Avhat weight should 
attach to it. And I also wish to state that that statute which com- 
pels the attendance of a witness before a court-martial when not resid- 
ing in a State, Territory, or District, as the judge-advocate thought, 
limits the call of that witness under that statute to this particular 
State. He would have no more authority to call that Avitness before 
some officer and take his affidaA'it or his deposition in some other 
State than he Avould haA'e to compel his attendance. If that witness 
refused, the only way he could be compelled to appear before that 
officer to take his deposition would be by Avrit of attachment. This 
court has no jurisdiction to issue a Avrit of attachment running out- 
side of the State of Texas; it is limited to this particular State. If 
it could issue a writ of attachment to compel him to answer that 
deposition, it could compel him to appear as a witness before this 
court. There is no poAver of punishment if he failed to obey that 
Avrit. 

The Judge-^Vdvocate. May it please the court, I think I have 
alread}' stated before the court that there is no law that I knoAv of 
authorizing a general court-martial or judge-ach^ocate thereof to com- 
pel attendance of any witness for the purpose of giving his deposi- 
tion Avhen such witness is outside of the State, Territory, or District 
Avhere the court-martial is sitting, and the remarks of the counsel are 
entirely in accordance with the law on the subject, though possibly 
superfluous. 

1643—07 M 9 



126 

The accused, his counsels, the reporter, and the judge-advocate 
withdrew and the court was closed, and on being opened the presi- 
dent announced in their presence as follows : 

The Court is reopened. No decision will be announced until to-morrow morn- 
ing. 

(The court then, at 11 o'clock a. m., adjourned to meet at 9 o'clock 
a. m. the following day.) 

Roger S. Fitch, 
First Lieutenant, First Cavalry, Judge-Advocate. 



Headquarters Department of Texas, 

San Antonio, Tex., April 20, 1907. 
The court met pursuant to adjournment at 9 o'clock a. m. 
Present: All the members of the court and the Judge- Advocate. 
The accused, his counsels, and the reporter were also present. 

The reading of the proceedings of April the 19th was dispensed 
with. 
On the o^jening of the court the president stated : 

The question before the court is tlie matter of the evidence of the witness, 
Rogers. 

The Judge-Advocate. May it please the court, I desire to state 
that yesterday afternoon I wired Joseph Rogers, at Atchison, Kans., 
asking him what time lie expected to leave for Boston, and what his 
address in Boston would be. I also told him that his presence here 
was very much desired, and that if he could come that w'e would not 
keep him here more than a day or two, and he could return right 
away, and I told him about the fees he would get and the mileage, 
for fear he would not know that. I have not yet received any reply 
from that communication, and I have not very much hope that he 
will respond by coming here in person. 

The President. Did you have a definite address in Atchison, Kans., 
or did you just send it to Joseph Rogers, Atchison, Kans.? 

The Judge- Advocate. I did not. But the telegraph company will 
send me word in case the message is not delivered. I now submit 
interrogatories to the defense for the addition of such interrogatories 
as they see fit to propound; and in that connection I would like to 
read to the court from page 513 of Davis's Treatise on Military Law 
of the United States, which quotes the ninety-first article of war: 

The depositions of witnesses residing beyond the limits of the State, Terri- 
tory, or District in which any military court may be ordered to sit, if talien 
on reasonable notice to the opposite party and duly authenticated, may be read 
in evidence before such court in cases not capital. 

Also on page 516 : 

This article [referring to the ninety-iirst article of war just read] in any 
case within its therms, and in which its conditions are complied with, entitles 
either party to have depositions taken and " read in evidence." The court alone 
has the power to decide that a deposition, where legal and material, shall not 
be taken. 

A deposition duly taken under the article on the part of the prosecution is 
not subject to objection by the accused, and can not be rejected by the court 
merely upon the ground that it is declared in the Sixth Amendment of the 
Constitution that " in all criminal prosecutions the accused shall enjoy the 



127 

right * * * to be confronted with the witnesses against him." This con- 
stitutional provision has no application to courts-martial ; the " criminal prosecu- 
tions " referred to are prosecutions in United States civil courts. 

The President. A member has just asked if what you read from 
the law was Davis's own statement of the law, or was it quotations 
from authorities. 

The Judge-Advocate. The first paragraph, which ended with the 
sentence " The court alone has no power to decide that a deposition 
where legal and material shall not be taken," has a reference number, 
which refers to the corresponding number at the foot of the page: 
" Digest J. A. Gen., 10.5, paragraph 7; "" and the second clause refers 
to the same authorit}", 107, paragraph 18. I will just hand this book 
to the court, so it can see what part I read [passing book to the 
president] . 

The President. Now, is the Judge-Adv'ocate through? 

The Judge- Advocate. I have nothing further to state, sir. I have 
handed the interrogatories addressed to this man Rogers to the 
defense, and if the defense will submit the cross-interrogatories, and 
the court will add such as it ])leases, and we will get them off to-day 
to the headquarters of the Department, I think we may be able to 
catch that man before he leaves for Boston. 

A ]\lEiiBER. Mr, President, in this connection I would like to ask 
the Judge-Advocate what Davis, or other authority' in law avail- 
able, has to say about taking depositions where questions of identity 
are involved. 

The Judge- Advocate. Davis, I am sure, has nothing to say on that 
.subject at all, sir. It may be that the defense has looked up that 
question, inasmuch as it was made an objection yesterday. In Win- 
throp's Military Law, second edition, on page 534, under the head- 
ing, " Testimony by Deposition," and with reference to the ninety- 
first article of war, it states — 
The effect of that statute— 
That is, the ninetj'-first article of war — 

is deemed to be not merely to indicate when this deposition shall be admissible 
as evidence, but to entitle parties in cases within the article to have depositions 
*' read in evidence." If, therefore, the deposition be in proper form, and 
material as testimony, the court can not refuse to receive and consider it. In 
all cases, except where a question of identity is at issue, depositions of distant 
witnesses may in general be substituted for personal testimony. 

Now, mv understanding of this expression. " question of identity," 
is that it refers merely to a case where it is necessary that the 
accused be identified and not with regard to the identification by a 
witness of localities or anything of that kind ; it seems to me it refers 
to a case where the witness has to be present before the court and 
state whether he recognizes a certain person or persons, or in cases 
where certain material objects, usually exhibits, which he has to be 
shown before the court, and which have to be recogTiized by him, 
and which it is impracticable to send him for identification. I do 
not see that the question of identity enters into the testimony of this 
witness at all, further than his statement as to what house he went to 
on the night in question. He stated that at that house, after he had 
.called out to Captain Macklin. that Captain Macklin replied, and 
that, it seems to me, identifies the house fairly well, and I think he 
can state in evidence what he knows about the place. 



128 

(At this juncture the Judge- Advocate was interrupted for the 
purj^ose of receiving two telegrams which were brought by mes- 
senger. He then proceeded with his remarks, as follows:) 

If it i^lease the court, I will interrupt at this stage just to read a 
telegram received from one C. J. Rogers. 

Atchison, Kansas. 
Lieutenant Fitch, 

Fort >^(im Houston, Tcras: 
I will not be ^ble to come until Wednesday, on account of my wife being sick. 

C. J. Rogers. 

I have also a note from the PostaF Telegraph Company stating: 

Your 70 paid Government date, Joseph Howard, signed Lieutenant Fitch, 
delivered to C. J. Rogers, an ex-soldier 25th Infantry. He was here. The mes- 
sage was for him. Advise Atchison, Kansas. 

The President. I do not quite understand that, Mr. Judge-Advo- 
cate. Howard, you say ? 

The Judge- Advocate. Joseph Howard. Now, according to the tes- 
timony before the Senate committee, this man's name is Joseph 
Rogers, not C. J. Rogers ; and in the pamphlet entitled " Discharge of 
Enlisted Men of the Twenty-fifth Infantry," his name is just given 
as " Private Rogers." His name is given on page 158 of t]ie pam- 
phlet discharging the enlisted men of the Twenty-fifth Infantry, in 
the list of men of Compan}' C, signed by Captain Macklin, merely as 
" Private " Joseph Rogers ; but from this telegram it appears it must 
be the same man. It saj's, " He was here. The message was for him. 
Advise." If the court desires, I will send another telegram and 
address it to Joseph Rogers, late private of Company C, Twenty-fifth 
Infantry, and find out for certain whether he is the man or not and 
whether he has promised to come. 

A Member. I move that the Judge- Advocate be instructed to tele- 
graph to Fort Leavenworth and ask them to send out a representative 
and try to get him. 

A Member. I second that motion. I believe that man's attendance 
can be secured here if we ask some representative of the Government 
to go and hunt him down. 

A Member (to the Judge- Advocate). Can you find another man by 
the name of Rogers in the list ? 

The Judge-Advocate. There is no other man of the name of 
Rogers in the list of either B, D, or C Company that I can find. 

The President. B^^ request of a member, the court will be closed. 

The accused, his counsels, the reporter, and the judge-advocate 
withdrew and the court was closed, and on being opened the presi- 
dent announced in their presence as follows : 

The court desires that if possible the attendance of Private Rogers be secured 
as a witness before this court. It desires that the judge-advocate use every 
effort to secure his attendance and to ascertain' definitely if it can be accom- 
plished. The court is ready to proceed. 

The Judge-Advocate. I would like to ask the court, in the first 
place, sir, whether it desires that all witnesses be excluded from the 
court room — the witnesses for either side whose testimony can not be 
affected by hearing what is going on — whether they shall be allowed 
to sta}^ here. 

The President. The question of witnesses in the 'court room, the 
judge-advocate brings up the question. 



129 

The Judge-Advocate. Lieutenant Johnson has been here during 
the session this morning, but there was no testimony given, and a wit- 
ness for the defense is at ji resent here, too, and I would like to know 
whether the court has any objection to their remaining during the 
taking of testimony? 

The Court. We think that might be subject to agreement between 
the judge-advocate and counsel. 

Counsel for the Accused. May it please the court, the defense has 
no objection to the presence of any witness whose testimony is not apt 
to be affected by what he hears in the court room. That applies, of 
course, to the officers especially. 

The President. The judge-advocate has no objection? 

The Judge- Advocate. No, sir. 

The President. Very well, then. 

Lieut. "Wait C. Johnson, of the Twenty-sixth Infantry, was re- 
called by the prosecution, and being reminded that he was still under 
oath, further testified as follows: 

Reexamination by the Judge- Advocate : 

Q. Mr. Johnson, during the time that you lived in quarters Nos. 11 
and 12, at Fort Brown, did you ever notice whether the stairways had 
the ordinary hand rail, banisters, or whether they were boarded up 
or not — the front stairway I refer to? — A. The stairway was open, 
with an ordinary hand rail ; it was not boarded up. 

Q. So that a person starting upstairs from the foot of the stairway 
could glance over into the hall ; is that right? — A. Yes, sir. 

Q. Do you know whether the stairway was similarly constructed 
in quarters 7 and 8 or not? — A. To the best of my recollection, it 
was — open stairway. 

Q. And with reference to quarters 3 and 4; do you recollect how 
they were ? — A. I think they were also open stairway. 

Q. The houses Xos. 1 and 2, 5 and fi, and 9 and 10, in which the 
stairways ran at right angles to the hall ; will you state to the court 
how they were arranged? — A. They were between two walls and 
were — well, there was a plastered wall on either side of the stairway 
all the way up. 

Q. But there was a small hand rail, was there, on either side, but 
not regular banisters, or how was that? Or was there am'^ rail? — 
A. To the best of my recollection, in 1 and 2 there was just an or- 
dinary piece of water pipe that ran up for you to take hold of when 
you were going upstairs. 

Q. Do you recollect how it was in 9 and 10? — A. In 9 and 10. I 
can not say. 

Q. Or in 5 and G?- — A. In 5 and there was a piece of wood that 
ran along up there that you could place your hand on. 

Q. There was no regularly constructed railing? — A. There was no 
regularly constructed railing. 

Q. And in all these quarters in Avhich the stairways ran at right 
angles to the hall ways the stairs ran up between two plastered 
walls? — A. Between two ])lastered walls. 

Q. And these walls were what color down there? — A. "\^Tiite — 
that is, I think they were. 



130 

Cross-examination by the Accused : 

Q. Mr. Johnson, in any of those houses where the stairway ran up 
in an open way, was it open like the stairways are in the quarters 
here, for instance, or was it cased in the upper story and open from 
the landing ?^ — A. It was just a hand rail from the bottom to the top 
of the stairs. 

Q. From the landing, you mean? — A. To the top of the landing; 
it was open all the way to the top of the stairs. 

(Excused.) 

The Judge- Advocate. The court stated to me the other dsij that it 
desired to recall Private Hairston for some questioning. Private 
Hairston is here, if the court desires to recall him at this time. 

The President. Very well. 

Charles Hairston, a witness for the prosecution, was recalled by 
direction of the court, and, being reminded that he was still under 
oath, further testified as follows: 

Reexamination by the Court : 

Q. Hairston, you stated in your direct testimony before the court 
the other day that after you left your post the firing commenced, and 
before 3^011 returned to your post that you went to B Company 
barracks ; is that correct ? — A. Yes, sir. 

Q. AVliy did you go there? — A. Because I was interested in the 
shooting, and I went on that account. 

Q. Did Major Penrose or anybody else tell you to go there? — 
A. No, sir; I was with Major Penrose; he did not tell me not to go, 
and I went on with him. 

Q. "When the firing commenced, was your rifle loaded ? — A. No, sir. 

Q. Did you load 3'Our rifle at any time after the firing com- 
menced ? — A. Yes, sir. 

Q. "Wlien? — A. After I went back to my post. 

Q. Did you fire your rifle at any time? — A. No, sir. 

Q. A^^ien you went to quarters No. 12 to wake up Captain Macklin, 
was the front door closed or open ? — A. It was closed. 

A Member. Is this man's testimonv that he went to quarters No. 
12, is that right? 

The President. Yes, sir. 

The eJuDGE- Advocate. Yes, sir. 

Q. You are sure that door was not ajar? — A. No, sir; it was not 
open. 

Q. It was closed every time you went to it ?— A. Yes, sir. 

Q. Now, after you went the first time to wake Captain Macklin, 
about how long was it before you went the second time? — A. Well, 
something like three or four minutes, I think. 

Q. And between those times, did j^ou walk your post ? — A. Yes, sir. 
Not all the way, but just a distance down the walk and back. 

Q. Down the walk ? — A. Yes, sir. 

Q. In what direction ?— A. In the east end of it. back towards the 
lower end, from the river. 

Q. Whilst you were walking your post in front of the officers' 
quarters — that is, after you returned to your post from B Company, 
and whilst you were walking, did you see any soldiers? — A. No, sir; 



131 

no more than some of the members of the guard — that was Corporal 
Burdett and Private De Sanssnre, and some other private. 

Q. Did you see Sergeant Taliaferro? — A. Xo. sir; I didn't, 

Q. During that time? — A. Xo, sir. 

Q. Did you see Corporal ^Madison during that time? — A. Xo. sir. 

Q, AMiat nuule you think that Captain Macklin lived in quarters 
Xo. 12? — A. Well, because I saw him go in those quarters, at least 
go in that building; I don't know which door he went in, but I was 
guessing at those quarters; I believed he lived in those quarters, 

Q. Do you mean that you saw him go in that night, or do you mean 
that you saw him do it habitually? — A. Yes, sir; I saw him go in 
that night, and other times, too. I Avas not sure of that, but I went 
there anyway. 

Q. You testified on your direct examination that a conversation 
took place on the porch. Did that conversation take place while 
Corporal Burdett was at the door of X'^o. 11 or 1'2 — I have forgotten 
which ? — A. Xo. 12 ; the same door I went to. 

Q. Xo. 12; and Captain Macklin Avas in the house? Did you hear 
tha^ conversation, or did Corporal Burdett tell you about it after- 
wards? — A. I heard what I stated. 

Q. You heard what Corporal Burdett said? — A, Yes. sir, 

Q, And you heard Captain Macklin's answer? — A, Yes, sir. 

Q. How far did you say you were from Corporal Burdett during 
the time you heard this conversation? — A. I was at the door with 
him at the time he called him. 

Q. Did Corporal Burdett see Captain Macklin? — A, He called 
Captain Macklin until he answered, told him to get up, they w^anted 
him at the guardhouse at once, that they were firing on the quarters, 
and he said ''All right." and got up immediately afterwards. 

Q. Who got up immediately afterwards? — A. Captain Macklin. 

Q. Plow do you know he did ? — A. Well. I was not but a few steps 
from the door when he came out. and it wasn't but a few minutes after 
he had been called — I don't think more than a minute and a half, if 
that. 

Q. You stated that the door was closed to Xo. 12 ? "^AHiat kind of 
door was it ?— A. I never noticed that — what kind of door it was. 

Q. Was it a screen door or a wooden door? — A. I don't remember 
what kind of door it was. 

Q. How do you account for the fact that Corporal Burdett suc- 
ceeded in waking him up and you did not? — A. I woke him up and 
he answered each time that I called him. but he didn't get up. 

Q. How do you account for the fact that he got up when Corporal 
Burdett called him?^A. Because I was there with him, and I was 
close to his door, immediately after he came out, when Corporal 
Burdett called him. 

Q. I do not mean that. I mean, why did he get up wdien Corporal 
Burdett called him and did not get up when you called him? — A, I 
don't know ; but I guess Corporal Burdett stated the facts to him, 
what was the matter ; I guess that is the reason he got up. 

Q. When you called Captain Macklin, what did you say? — A. I 
called him, "Captain Macklin I Captain Macklin I " just like that, 
until he answered, and I told him to get up ; told him they wanted him 
at the guardhouse at once, and he said "All right," just in that 
manner. 



132 

Q. Now, Hairston, after the second time you called Captain Mack- 
lin, did you stay in his quarters, or did you walk to your post ; walk 
off? — A. No; I walked down the walk each time to give him time 
to get up, and after he didn't get up I continued calling him. 

Q. But during these intervals, did you walk just a few paces from 
his house, or did you walk your post ? — A. Just a few paces from his 
house. I didn't walk all around the post, as I was supposed to. 

Q. And after the third time you called him, did you just walk a 
few paces off then? — A. Yes, sir; a few paces then, until I met Cor- 
poral Burdett. 

Q. So how many minutes was it from the first time you called him 
until Corporal Burdett called him and woke him up? — A. I don't 
remember that. 

Q. Well, twelve or fifteen minutes? — A. Something like that, 
maybe ; I ain't sure. 

Q. But each time you walked a few paces from his house ?— A. Yes, 
sir; a little ways down the walk. 

Q. Did it take you fifteen minutes to walk those few paces each 
time?— A. Well, I wouldn't say fifteen minutes. I say it probably 
did ; might have taken me that long, I don't know. 

Cross-examination by the Accused: 
Q. I want to read you questions that were asked you the other 
day and your answers : 

Q. Are you sure that it was from this house, either 11 or 12. that Captain 
Maclilin caiue when Corporal Burdett finally called him? — A. Yes. sir; he came 
out of one of the floors, but I was such a distance from the house I couldn't 
tell exactly which house he came from — I was about 40 feet, about 50 feet, 
I guess, from the door when he came out. 

Q. So you left Coriwral Burdett before Captain Macklin came out? — A. No, 
sir ; Corporal Burdett left me and went off down the walk. 

Q. You were which way from Captain Macklin's house at the time Corporal 
Burdett was knoekina; at the door and at the time Captain Macklin came out a 
minute or so later, were you to the east of Captain Macklin's house or to the 
west? — A. I was to the east. 

Is that correct? — A. No, sir, 

Q. That is not correct? — A. No, sir; for I first stated that I was 
with Corporal Burdett at the time he was at the door, and then when 
he left the door Corporal Burdett Igft me and went down the walk. 
It was only a few steps when Captain Macklin came out. 

Q. Did you ever go to No. 11 that night? — A. No, sir. 

Q. Did Corporal Burdett? — A. No, sir. 

Q. Have you a distinct recollection of the officers' quarters that 
night, Hairston — that is, the outside appearance of any of them, what 
appearance they showed, whether light or not?— A. Well, no, sir; 
not more than Major Penrose's there, and Captain Macklin's. I 
wouldn't have noticed his lights if I hadn't been to his quarters. 

Q. You do not think you were mistaken about Major Penrose's? — 
A. No, sir ; I know I am not. 

Q. Now, will you describe that house, its appearance, as far as that 
light was concerned? — -A. Major Penrose's? 

Q. Yes. — A. Why, yes, sir. There was on the east side of the 
house, towards the guardhouse, his blind was up, and there was a 
lamp burning on the center table there, and Major Penrose and his 
wife were seated in the pai-lor talking at the time this came up. I 
just seen them as I passed the window. 



133 

Q. That was downstairs, was it? — A. Yes, sir; that was down- 
stairs. 
Q. And that was when the shooting occurred ? — A. Yes, sir. 

Q. And so Major Penrose came out from that room downstairs and 
saw you right away?^ — -A. Yes, sir. 

Redirect examination by the Judge- Advocate : 

Q. Hairston, you saw this light in Major Penrose's quarters and 
saw Major Penrose? — A. Yes, sir. 

Q. Seated at a table?— A. I don't think 

Q. AMien you Avere coming uj) from the east side of his quarters 
just a very short time before the shooting began — is that right? — A. 
He was not seated at a table ; it seemed they were sitting back in the 
parlor. 

Q. That was a little while before the shooting began, was it? — A. 
Yes, sir; I don't guess it was a minute beforehand. 

Q. AYere you walking past rapidly then or were you A. No, sir; 

I was just merely moping along there. 

Q. Did you notice any lights in any of the houses that were occu- 
pied bj" the ladies on that night, where Corporal Burdett and his 
guard were stationed, were there any lights there, do 3'ou know? — A. 
Yes, sir; I think — I am not sure — but I think there was a light in the 
quarters. 

Q. I refer, you understand, Hairston, to the house where the 
ladies, or the officers" wives. Avere all together, and at the house where 
Corporal Burdett Avas stationed. Do you remember Avhether there 
Avas any light there or not ? — A. Yes, sir ; I think thej^ lit a light — I 
am not sure of it, but T think after that they did. 

Q. Did you go ))ack the line as far as Major Penrose's quarters at 
any time after you returned to your post from B Company? — A. Yes, 
sir; I Avalked up and cloAvn in front of the officers' line. I didn't go 
all the way around it any more that night. 

Q. AAlien you spoke to the court about just going a fcAV paces aAvay 
from Captain ]Macklin"s quarters, do you mean that you Avalked up 
and doAvn right by his quarters, or did you walk doAvn in front of the 
line? — A. Yes. sir; a fcAA' steps doAvn the Avalk, and then back. I 
was trying to get him up before I Avalked my post any more. 

Q. How far doAvn the line did you go — tAvo sets of quarters or 
three, or how many? — A. Yes, sir; something like that — about two 
or two and a half. 

Q. You are sure you did not go any more? — A. Xo, sir; I didn't. 

Q. So you confined your Avalking practically to the Avestern half 
of the front line of the officers" quarters ? — A. Yes, sir. 

Q. So you do not knoAv Avhether in Major Penrose's quarters the 
light was put out later on or not ? — A. Xo, sir. 

Q. Do you knoAv Avhen it Avas put out ? — A. No, sir. 

(Excused.) 

Maj. A. P. Blocksom, a Avitness for the prosecution, Avas duly 
sworn, and testified as folloAvs : 

Direct examination by the Judge- Adaocate : 
Q. Please state your name, rank, and station. — A. A. P. Blocksom; 
acting inspector-general, SouthAvestern DiAdsion, United States Army; 
station, St. Louis, Mo. 



134 

Q. Do A'ou know the accused? If so, state who he is. — A. Capt. 
E. A. Macklin, Twenty-fifth Infantry. 

Q. How long service have you had, Major Blocksom? — A. I have 
had thirty years as a commissioned officer this June. 

Q. What duty were you on about August 13, 1906, and where were 
you at that time? — A. I was on duty as assistant inspector-general of 
the Southwestern Division, at Oklahoma City, Okla. 
■ Q. Oklahoma City was at that time a headquarters of a division ? — 
A. Headquarters of the Southwestern Division. 

Q. Did you receive any orders then, or within the next few daj^s, to 
make a certain inspection in Texas? — A. I received written orders to 
proceed to BroAvnsville, Tex., on the 16th of August. 

Q. For what purpose? — A. To proceed to Brownsville and investi- 
gate the alleged shooting in the town on the night of August 13 by 
soldiers of the Twenty-fifth Infantry. 

Q. Did 3^ou, in obedience to those orders, soon afterwards leave for 
Brownsville? — A. Yes, sir; I left that night. 

Q. And arrived there? — A. Arrived at Brownsville on the night 
of the 18th, about 6 o'clock. 

Q. Did you in the course of your investigation there learn the 
general reputation of Mr. and Mrs. Evans, whose names were con- 
nected with the case in connection with an alleged assault? — A. I 
did. 

Q. What was the character, or what was the reputation, rather, of 
those two people ? — A. Their reputation was excellent. 

Q. AMiere was their house with reference to what was called the 
tenderloin district? — A. I should say it was about 50 yards, pos- 
sibly more, from the end of the tenderloin district. 

The Court. We would like to ask the major if he can indicate on 
the map where that location is. — A. I can; only approximately. I 
was shown the house. [Steps to the map.] 

The Court. In the first place. Major, will you point out what you 
understand as the tenderloin district? — -A. The tenderloin district, 
as shown to me by a driver in the buckboard which I was in one day 
inspecting this part of the city — told me the tenderloin district was 
right along here [indicating] somewhere; I have forgotten where 
the end of it was. [Indicating northern side of the road marked 
" garrison road," and in a general northerly direction from the guard- 
house and vacant set of barracks.] It may have begun right here; 
I am not certain; I believe it did begin right there [indicating an 
easterly direction from the corner of Adams street and the garrison 
road] . It is possible it may have begun there ; I don't remember. 

The Judge-Advocate. I would like to state to the court that I did 
not ask Major Blocksom to point it out on the map, because that 
eastern section of the map, especially in the vicinity of the north 
corner on the map, is not shown accurately, and my own impression 
is that the house lies on a street that is not shown on that map. and so 
I did not ask the major to point it out. — A. The house of Mr. and 
!Mrs. Evans — that is, the house they occupied when the alleged 
assault took place — was someAvhere over in here [indicating] ; I am 
pretty sure it was on this side of the street. [Indicating a point near 
the north corner.] If the tenderloin district begins there, the house 
was about there. That is about the only description that I can give 
of its location. 



135 

The Judge- Advocate (to the court). Is that satisfactory? 

The Court. Yes, sir. 

(The witness resumed the witness chair.) 

Q. This house was, therefore, off the edge of the district known as 
the " tenderloin ? "—A. Yes. 

Q. And the character of the people — or, rather, the character of 
Mr. and ^Irs. Evans — Avas not in any way affected by their living in 
the vicinity of that district, was it? — A. It -was not. 

Q. "Was it or not at that time very difficult at all to rent houses 
in Brownsville, on account of the influx of immigrants and settlers ? — 
A. I am not certain about that — I think I heard one or two people 
say so — at least one — but I don't know that I heard any more. 

Q. You do not know what the circumstances were that required 
them to live in that vicinity, do you? — A. No, sir; I do not. 

Q. But their reputation was what? — A. Was excellent. I inquired 
of quite a number of people about it. all responsible people. 

Q. How long w'ere you at Brownsville altogether on this par- 
ticular inspection, Major? — A. I was there from the 18th of August 
until, I think, the 4th of September. 

Q, A matter of two weeks or more ? — A. Two weeks — a little over 
two weeks. 

Q. Did you. during the course of your investigation with reference 
to the shooting of August the 13th. make any inquiries of Captain 
Macklin as to his actions on the night of the 12th, the day of the 
13th, and the night of the 13th ?— A. I did. 

Q. Please state fully to the court all that yon recall of what was 
said to you by Captain Macklin on this occasion in this connection. — 
A. To the best of my recollection. Captain Macklin told me that on 
the night of the 12th he had gone over to Matamoros with a number 
of officers and, I believe, ladies, all together — I am not certain about 
the latter — he had been over there until quite late — although I do 
not think he told me the hour of their leaving — at any rate, he said 
that he was very tired and in want of sleep on the night of the 13th. 
After having sent out certain patrols, which he was ordered to do, 
and having gone into town himself, either with a patrol or alone, I 
don't remember which, he received the reports after taps, and went 
around the barracks and inspected sentinel Xo. 2, and shortly after 
that went to his quarters. I do not remember whether he told me he 
inspected the guard at that time or not — I do not think he mentioned 
the fact, but I understood he only inspected the sentinel. 

Q. The sentinel on Xo. 2? — A. The sentinel on Xo. 2 — that is, the 
sentinel around the barracks. 

Q. After he returned to his house, what did he do, according to 
his statement? — A. After he returned to his house he told me he sat 
down for quite a while and drank a bottle of beer. 

Q. Did he say a bottle of beer, or bottle, or say beer — do you 
remember? — A. My recollection is that he said a bottle of beer. 

Q. He did not state- — -A. He did not state the size of the bottle. 

Q. Then what did he do ? — A. At least. I don't think he did. 

Q. Then what did he do? — A. He said he then went to bed, and, to 
the best of my recollection, ho said in the back room : that he did not 
hear any shooting that occurred after he went to bed. and that he did 
not wake up — or was not wakened. I do not remember which ex- 
pression he used — until about 1 o'clock. 



136 

Q. Did he get up at that time, 1 o'clock, or did he state any- 
thing A. My recollection is he said he got up at 1 o'clock, about 1 

o'clock. 

Q. He said he got up about 1 o'clock ? — A. Yes. 

Q. Did he say anything to you about having the impression that he 
had been awakened at some previous time? — ^A. I have no recollec- 
tion of his having made any statement of that kind. 

Q. So you do not recall his having stated that he was awakened at 
some prior occasion before he finally did get up? — A. As I stated 
before, I have no recollection of it, although he may have stated 
something of that kind. - 

Q. During your investigation down there and examination of the 
officers and enlisted men, did you find anyone else who had, like Cap- 
tain Macklin, slept through the entire firing or shooting on the night 
of August the 13th? — A. No; I did not find out anybody nor did I 
hear of anybody. 

Q. Wliat was the distance, Major Blocksom, from the front of the 
officers' line to the line of the iDarracks? Did you ever pace that 
off? — A. I paced it off while there on that occasion 

Q. What was the distance ? — A. And I made it 175 yards. 

Q. From the front line of the officers' quarters to the barracks? — 
A. From the front line of the officers' quarters to the barracks, 
but 

Q. And the distance from the barracks — pardon me? — A. But I am 
not certain whether it was between the quarters themselves and the 
barracks themselves or from the walks in front of the quarters to the 
walks in front of the barracks, but I think it was between the build- 
ings themselves. 

Q. Did you similarly pace off the distance between the rear of B 
or C Companv barracks to the garrison walls? — A. Yes, sir. 

Q. AVhat was that distance? — A. By pacing, I found that to be 25 
yards. 

Q. So the distance from the front line of the officers' quarters to 
the garrison road would be 200 yards ])lus the depth of the bar- 
racks, which is about how much, approximately? — A. The depth of 
the barracks and porches was about between 35 and 40 feet — no ; pos- 
sibly I am mistaken about that. It may have been a little less than 
that. 

Q. So that the total distance from the front line of the officers' 
quarters to the garrison road, according to your pacing and estima- 
tion, would be about 210 or 215 yards?— A. It would Idc something 
over 200 yards, counting the depth of the quarters — that is, to the 
road outside of the barracks wall it would be over 200 yards. 

Q. Did you look at any of the buildings that were shot up that 
night, buildings that had the marks of the bullet holes in them? — A. 
I looked at them, but only casuallj^ 

Q. How far away from the post was the farthest house that had 
bullet marks in it," that vou examined? — A. Oh, you mean outside 

of the 

Q. Outside of the reservation ? — A. I would like to have that other 
question read over to me. I do not think I understood it. 
The reporter read the question, as follows : 

Did you look at any of the buildings that were shot up that night, buildings 
that had the marks of the bullet holes in them? 



137 

A. You mean in town? 

Q. Yes. — A. Yes; I did. I was thinking you referred to the 
barracks. 

Q. How far away from the post was the farthest house that showed 
signs of having been shot up on that night? — A. Tilhnan's saloon was 
the farthest, I think. 

Q. Will you kindly point out Tillman's saloon on the map? — A. 
(Stepping to the map.) I think that whole square there is Tillman's 
saloon — it runs clear back to the alley. 

Q. AVhat is the number on that, please, Major? — A. No. 8 — there 
are two numbers on it. No. 8 and No. 3. [Indicating a building on 
Elizabeth street, between Tw'elfth and Thirteenth, a little nortli of 
the center of the block.] 

Q. And will you kindly point out and name each of the other build- 
ings that you examined, that showed signs of having been shot up on 
the nighf of August the 13th?— A. There was the Miller Hotel. 
[Indicating building corner of Thirteenth street and the alley run- 
ning parallel to and between "Washington and Elizabeth streets.] 
The rear of Doctor Thorn's house. 

Q. AVill 3'ou please indicate the Cowen alle}^ on that map, what 
was called the Cowen alley? — A. You mean where Cowen 's house 
was? 

Q. Yes? — A. That is the alley. [Indicating alley running paral- 
lel to and between Washington and Elizabeth streets.] 

Q. Now, will you kindh^ point out Doctor Thorn's house again? 
(The witness here indicates, the back part of house on the Cowen 
allej', halfway between Thirteenth and Fourteenth streets.) 

Q. And what other houses. Major? — A. The rear of the Leahj'' 
Hotel. [Indicating building corner Elizabeth and Fourteenth 
streets.] The Cowen house. [Indicating building corner of Four- 
teenth street and Cowen alley.] The Garza house. [Indicating 
house opposite Cowen house.] The Yturria house — no : that was not 
the Yturria house. This is the Yturria house here. [Indicating 
building marked 7, a large building at the corner of Elizabeth street 
and the garrison road.] 

Q. And what other building, Major? — A. The sitting room in 
Mr. Reynold's house. [Indicating building corner Elizabeth street 
and garrison road.] 

Q. Was there a house on Washington street that was also shot 
up? — A. Oh. yes; there was a house up here, Mr. Starck's house. 
[Indicating house marked No. 6 (or 9) on Washington street, and 
between Twelfth and Thirteenth streets.] There was also a house 
across the street from the Starck house, which had one bullet mark 
on it — Mr. Turk's house. By the way, there was another house which 
had marks on it, too — the house across the street from the Miller 
Hotel on Thirteenth street, which was occupied 

Q. Called the King Building, wasn't it? — A. Called the King 
Building. It was occupied largely by offices, and also on the first 
floor by a wholesale merchant. 

Q. By offices? — A. Law offices, principally, on the second floor. 

Q. Did you find any signs indicating that the people who did the 
shooting on the night of August 13 did any shooting at points 
farther from the post than, say, the corner of Washington and 
Twelfth streets, or the corner of Elizabeth and Twelfth streets? The 



138 

shooting apparently had taken place between Twelfth street and the 
post, hadn't it, or in the post? — A. There was no evidence to show 
that the main part of the shooting was beyond the corner of Twelfth 
street and the CoAven alley. I think this is Twelfth street, that last 
street that way. [Indicating on map.] 

Q. Yes ; it is. — A. I think there was one witness testifying to some 
shooting, I think, bejond there — that is, told me of it. 

Q. Major, I hand you now a manual of guard duty of the United 
States Army, approved June 14, 1902, and issued from the Govern- 
ment Printing Office under date of 1902. It is, I believe, the last 
manual of guard duty. I will ask you if you recognize it as such, 
and to please read to the court paragraph 58. [Hands book to wit- 
ness.] — A. I do recognize it. 

The Judge-Advocate. We have asked the defense if the}" have any 
objection to being read in evidence this particular copy of the Guard 
Manual, which is not stamped with the official seal of the War Depart- 
ment, but it is the ordinary manual of guard duty, and the defense 
have stated that they have no objection to its being read in evidence. 
Is that correct ? 

Counsel for the Accused. That is correct. 

A. (The witness reads from paragraph 58, page 12:) 

In case of an alarm of any kind the officer of the day will at once take such 
steps as may be necessary to insure the safety of public property and preserve 
order in the command, disposing his guard so as best to accomplish this result. 

Q.. I will ask you now, Major, to read paragraph 55 on the pre- 
ceding page, and also a certain paragraph of General Orders, No. 
189, of the War Department, dated Washington, November 15, 1906, 
which modifies that paragraph? — -A. Paragraph 55 of the Manual, 
page 11, reads: 

In the absence of special instructions from the commanding officer, the officer 
of the day will inspect the guard and sentinels during the day and night at 
such times as he may deem necessary. 

The Judge-Advocate. And this order, the same remarks apply 
with respect to this order. This order has not the official stamp of 
the War Department, but the defense has stated it has no objection. — ■ 
A. The order is " General Orders, No. 189, War Department, Wash- 
ington, November 15, 1906. II. Paragraphs 55 and 69, Manual of 
Guard Duty, are amended to read as follows : 

55. In the absence of special instructions from the commanding officer, the 
officer of the day will inspect the guard and sentinels during the day and night 
at such times as he may deem necessary. He will visit them at least once 
between 12 o'clock midnight and daylight ; and when there is no officer of the 
guard he will visit each relief at least once while it is on post. 

A Member. I would like to ask the date of that order. 

The Judge-Advocate. November 15, 1906. 

Q. Do you know how that order came to be issued, or upon whose 
recommendation it was issued — this modification of paragraph 55, as 
given in that general order. No. 189, just read by you? — A. I only 
know that the inspector-general of the Army told me of the matter 
at Oklahoma City in October of last year when he was on his road to 
Fort Reno to further investigate the Brownsville affair. He told 
me among other things that he intended to recommend that the officer 
of the day should inspect the guard between midnight and reveille, 
as had been the custom years ago. 



139 

Q. You say that was the custom years aoo > — A. Yes. 

Q. Do yoii know that of your personal knowledge? — A. Ye^. 

Q. And in the later editions of the Guard Manual, or in late years, 
at any rate A. That has heen omitted. 

Q. That has been omitted from the A. Instructions. 

Q. From the instructions covering the officer of the day's duties? — 
A. Yes. 

Q. And that was until what time? — A. I do not remember how 
long ago. It was quite a numlxn- of years ago — probably eight or ten 
years ago. I do not really remember, however. 

Q. Do you know what the custom of the service is in that particu- 
lar — whether it is ordinarily expected that an officer will inspect 
after midnight or after taps, or when ? — A. The officer of the day is 
supposed to use his own judgment in the matter. That has been the 
custom until this new order was issued. He was entirely untram- 
meled, unless he had special orders from the commanding officer. 

Cross-examination by the Accused : 
Q. ^Nlajor. will you read paragraph 75 of that Guard Manual? — A. 
(Reading:) 

When nil jilanii is raised in a oanip or garrison, the guard will be formed 
immediately. If the case be serious the proper call will be sounded and the 
commander of the guard will cause the commanding officer and the officer of the 
day to be at once notified. 

Q. INIajor, I understand that the orders in force at Fort Brown, as 
determined by your investigation, Avere, as far as they related to the 
officer of the day — were those orders that were contained in the 
Guard Manual, paragraphs of which you have just read? — A. Yes. 

Q. Did you find that there were any special orders issued to the 
officer of the day on this particular date regarding his duties as 
officer of the day. other than to make certain patrols in town? — A. 
He was ordered to send certain patrols into the town. There were 
three of them made during the evening of the 13th, and the officer of 
the day was either ordered or went of his own accord into town him- 
self, as a patrol, or with a patrol. 

Q. Do you knoAv of any other orders having been issued to the 
officer of the day on that date? — A. He was directed to bring in all 
the men in town Avho were found during those patrols and to notif}^ 
them that all passes were up at 8 o'clock. 

Q. lUit I mean anything else than these orders relating to the 
pati'ol — were there any other special orders concerning any inspec- 
tion to be made by him, or anything of that kind, or was he under 
the usual orders of the officer of the day at the post? — A. Otherwise, 
I understood that he was under the usual regulations or usual orders — • 
that no other special regulations were given. 

Q. Were there any other general orders existing there at Fort 
Brown which required anything further than the, Guard Manual 
required as regards inspections by the officer of the day? — A. Xo. sir. 

The Judge-Advocate. I wish to state here that all the officers that 
have appeared thus far as witnesses for the prosecution and who 
were actually present on the night of August 13, are still here and 
available to give first-hand evidence as to the actual conditions 
existing there at that time. I have tried to avoid asking ]Major 
Blocksom anvthinof relatina: to the conditions there about which he 



140 

could have no first-hand knowledge or which was not told him by 
the accused himself; and the prosecution will have to object to 
hearsay testimony, even though it was given to an officer acting as 
an inspector. 

Q. Major, as an inspector, you are familiar with the customs of 
the service, are you not ?— A. I am. 

Q. What is the custom of the service with respect to the officer of 
the day going to bed? — A. Unless he receives special instructions to 
the contrary from the commanding officer or unless there is some 
unusual danger in prospect, he,- 1 may say, always goes to bed. 

Q. Was there any old-time custom in the Army in which the officer 
of the clay kept his clothes on in going to bed ? — A. Not since my 
entry into the service. 

Q. You never heard of any of the old officers performing officer 
of the day's duties by keeping their clothes on all night, even though 
they laid down? — A. Not in peace times, I never heard of it. 

Q. That is not a modern practice, is it, with the officer of the 
day ? — A. That is, going to bed ? 

Q. I mean that is not modern practice to go to bed with his clothes 
on — to lie down with his clothes on? — A. It is not the modern 
practice. 

Q. Major, in that investigation that you made up there at Fort 
Brown, as I understand it, one of the purposes of that investigation 
was to determine whether or not — or, rather, to determine who had 
done the shooting down there that took place ; and another j)urpose 
of the investigation was to determine whether or not any responsi- 
bility rested upon the commanding officer of that post or on the part 
of any other officers in connection with the shooting that took place 
down there on August 13 ? — A. Yes. 

Q. Now, did you approach these officers, particularly the command- 
ing officer, to determine whether or not he had any resjDonsibility and 
try to find out everything from him that you coulcl ? — A. Yes. 

Q. And similarly with respect to the officer of the day ? — A. Yes. 

Q. Now, I want to ask you the attitude in which Captain Macklin, 
the officer of the day, received your questions or your investigation — 
w^as it one of frankness or was it one of trying to hold something 
back and one which necessitated pointed questions being asked him by 
you ? — A. It^jtvas one of frankness. 

Q. Was it one that impressed you with a belief that he was honest 
in what he said to j^ou? — A. It was. 

Q. Did he seem to be making a full statement of his actions on that 
night in question ? — A. He did. 

Q. Did he seem to think it was necessary that he give fully all the 
light that there was on the question ? 

The Judge- Advocate. If counsel would just modify that question 
slightly, there would be no objection. That is a thing that is pretty 
difficult for the witness to state, I should think. 

Associate Counsel for the Accused. May it please the court, I 
am trying to get at a certain particular point in connection with Cap- 
tain Macklin's statement. I do not very well see how I can approach 
it in any other wa}'. All I expect to ask of the witness is that he 
answer as to what his knowledge is of the particular question. He 
may not know to what the question relates and may not be able to 
answer it. I shall be satisfied with his answer. Tlie witness may not 



141 

be able to understand the point I am trying to make, be may not be 
able to answer it definitely at all, but if he does so answer it it will 
give me an opportunity to frame my question so as to put it more 
clearly before him. I can not see very well how I can approach the 
Avitness and get a definite answer without leading the witness. I will 
try it, however. 

The JuDOE-AnvocATK. I will ask the reporter to please read the 
question. 

(The reporter read the question.) 

Associate Coinsel for the Accused. I will withdraw that ques- 
tion. 

Q. Major. Captain Macklin understood that he was the subject of 
investigation, did he not ? — A. Yes. 

Q, Did he impress you that he felt it necessary to explain all his 
movements on that particular night, and cover, as near as possible, the 
periods of time that were in question? — X. Although he answered 
fully my questions in the matter, I do not think that he did under- 
stand that he was to show Avhat he did during the whole of that 
night — that is. before he went to bed. 

Q. AVell. I do not quite understand that. Major — what do you 
mean by that? — A. That is, I mean to say he did not seem to under- 
stand that he was to show what he did each hour, for instance, or 
minute of time until he went to bed that night. 

Q. That is, his statement was not so full that it covered the entire 
period from A. Not categorically ; no. 

Q. Not categorically ? — A. Xo. 

Q. But you did not get the impression that he was holding back a 
single thing in connection with that period, did you ? — A. I certainly 
did not get such an impression. 

Q. Were you or not impressed with the honesty of the statement 
of Captain Macklin? — A. I was impressed with the honesty of his 
statement ; I believed he was telling me the truth, and I believe so 
now. 

Q. He stated to j-ou, did he not, that he drank a bottle of beer 
before he went to bed ? — A. Yes, 

Q. Did you consider at that time that it was necessary for him to 
volunteer that information? — A. No. 

Q. AMiat impression, then, did that form on your mind? — A. It 
did not make a bad impression; although on account of it I believe 
now I questioned the commanding officer concerning Captain Mack- 
lin's actions on that night and asked him if Captain Macklin was 

The Jttdge-Aovocate. There is no objection to the witness's stat- 
ing what he asked Major Penrose; but it seems to me that jNIajor 
Penrose's replies and what he said would better be brought out at 
first hand from Major Penrose himself, as a witness for the defense, 
rather than making a witness for the defense out of Major Blocksom 
on cross-examination. 

Associate Counsel for the Acctjsed. Is the question formally 
objected to, may it please the court? 

The Judge- Advocate. I will ask the reporter to read the question 
and answer. 

(The reporter read the last question and answer.) 

The Judge-Advocate. We have no objection to the witness con- 
tinuing his answer and stating what he asked Major Penrose. 
1643—07 M 10 



142 

The President. The witness will proceed. 

A. I asked Major Penrose whether Captain Macklin had per- 
formed his duties properly on that evening, whether he had noticed 
his condition as to sobriety, and also whether Captain Macklin was 
in the habit of drinking intoxicating liquors to excess. 

Q. Did you get satisfactory replies from the commanding officer, 
Major?— A. I did. 

Q. Did you get any information from the commanding officer with 
respect to Captain Macklin's performance of the officer of the day's 
duty, his general performance of that, if you happen to remember? — 
A. Yes: he told me that Captain Macklin 

The Judge- Advocate. I will liaA^e to object to that. Major Penrose 
is here and will be put on the stand, and can state just exactly what 
he believes as to the manner in which Captain Macklin performed his 
duties, and it seems to me that that is the best evidence — and inas- 
much as it is easily obtainable. I think I shall have to object to this. 

Associate Counsel for the Accused. I am somewhat surprised at 
the judge-advocate, after introducing before this court a witness who 
arrived down there at Fort Brown on the 18th of August, and there- 
fore had in his possession not a single primary piece of evidence, after 
having presented him as a witness before this court, a witness for the 
prosecution, to make this objection. The nature of his testimony 
must then of necessity have been hearsay testimony, and as such 
determined by him as official investigator of the Inspector-General's 
Department of the Army of the United States, and after having pre- 
sented him as a witness before this court for the prosecution, yet, 
upon our cross-examination of this witness he seeks to debar us from 
such cross-examination along the same lines and same efforts. An 
extensive examination of this witness was permitted, which would 
not, I believe, have been allowed if we had objected to it; but we 
want, may it please the court, a full and free investigation of this 
investigation of Captain Macklin. He feels, and we feel, that he 
has got nothing to conceal about it, and we feel that anything 
this particular witness has to say we want to hear it. If the court 
permitted it, and certainly if they permitted it on direct examination 
we feel we are entitled to cross-examine him along the same line and 
in the same particulars. 

The Judge- Advocate. May it please the court, I would have no ob- 
jection to this coming out by the testimony of the witness now on the 
stand were it not for the fact that the statements made to him by 
persons other than the accused, and with reference to which the 
cross-examination is now being conducted, were all made by officers 
now present in the ])ost and who can state exactly what they told 
Major Blocksom at that time and what the circumstances were at 
that time ; and the direct examination of the witness on the stand did 
not bring in any conversation, as I remember it. with parties other 
than the accused — and that is the only way that conversation could 
be brought out. But I believe in other respects that heresay testi- 
mony has been avoided. The admission of the accused is not hear- 
say. I will have to object formally to this manner of questioning. 

The accused, his counsels, the reporter, and judge-advocate with- 
drew, and the court was closed, and upon being opened the president 
announced in their presence as follows : 

The objection of the judge-advocate is not sustained. The witness will answer 
the Question. 



143 

The JiDGE-AinofATE. I \\\\\ ask the rei)()iter to read the question 
and answei-. so far as ijivcn. 

The reporter read the question and answer, as follows: 

Q. Did yoii jj;ot any information from tlie cdmmandinj: odieer with respect to 
Captain .Macklin's performance of oflicer of the day's dnty — his general per- 
formance of tliat — if yon happen to remember? — A. Yes. He told mo that Cap- 
tain Macklin 

Q. Now, continue your answer. Major. — A. Does that refer par- 
ticularly to that night only ? 

Q. No. sir. — A. (Tenerally? 

Q. Generally. — A. He toid me that Captain Macklin had complied 
fully with his instructions on that night ; that he was an excellent 
officer in the performance of duty generally, and did not drink intoxi- 
cating li(|uors to excess. 

Q. Major, did you make any investigation as to Avhy Captain 
Macklin w-as not awakened that night — that is, did that point come 
up at all, as to his being wakened by the guard or others? — A. I 
questioned the sergeant of the guard on that subject, and he told me, 
to the best of my recollection, that he had sent a member of the guard 
several times up to the quai'ters of Captain Macklin to wake him up, 
but that he was unable to do so. 

Q. You developed from your inA^estigation that the sergeant-major 
also had been sent up to awaken him? — A. Yes. 

Q. Now, with reference to the attempt' made bv the battalion ser- 
geant-major to awaken Cajjtain Macklin, that was not investigated 
bv vou further than simplv voii knew that an effort had been made? — 
A. "That was all. 

Q. Now. with reference to these efforts that had been made by 
members of the guard, did you believe that was an honest effort that 
had been made by members of the guard to awaken Captain Macklin? 

The JiDGK-Ai)vo("ATE. Now, I will have to object to questions that 
are simply questions of opinion and belief, and I will have to object 
to that question. 

Associate Coinsel for the Accused. I will modify it, may it 
please the court. 

The President. Very Avell. 

Q. From your investigation of that matter. Major, Avas the result 
of that investigation that the effort made was an honest effort or not 
on the part of the guard ? — A. It was a matter of opinion simply. 

The JiDGE- Advocate. I Avill have to object to that. 

The Presidext. The court will be cleared. 

A Me:mber. I would like to submit, sir, that the judge-advocate did 
not state the cause of his objection to this particular question. 

The Judge- Advocate. The judge-advocate will state the objection 
is made on the same grounds as previously stated to the former 
question — that it is merely a matter of opinion. 

Associate Counsel for the Accused. And, may it })lease the 
court, substantially the reply of the defense to that objection is the 
same as the reply to the previous objection. 

The accused, his counsels, the re])orter. and judge-advocate Avith- 
drcAv and the court Avas closed, and on being opened the president 
announced in their presence as folloAvs: 

The objection of the judge-advocate is sustained. 



144 

The Judge-Advocate. May it please the court, I desire to state 
that I have just come from the adjutant-general's office. I told him 
of the court's desire, and the department commander has sent a tele- 
gram to the commanding general of the division requesting that ever}'^ 
effort be made to induce this man Rogers to start here at once. 

Q. Major, do you know where Captain Macklin slept that night ? — 
A:. In what part of his quarters ? No. 

Q. Do you know what part of the house was usually occupied as 
the sleeping apartments of the different officers down there at Fort 
Brown? — ^A. Well, I can only say what my impression was. The 
back rooms Avere usually used. 

Q. Was there any reason for that. Major? — A. On account of the 
prevailing wind at night coming from the direction of — I don't know 
what they call it, a pond. 

Q. Lagoon? — A. Lagoon there, yes; and my recollection is, also, 
that that is from the Gulf — the wind comes from the Gulf in that 
direction. 

Q. That room is towards the south, is it ? — A. Yes. 

Q. Did it develop from your investigation that Captain Macklin 
folloM^ed out the custom of the post in that regard? — A. That is my 
impression — my recollection. 

Q. Major, what conclusion did you get as to Captain Macklin 's 
sleep that night ? 

The Judge- Advocate. I will have to object to that. 

The Court. Wliat is the question ? 

(The reporter read the question.) 

The Judge- Advocate. The prosecution will have to object to that, 
as it did to the last question, on the ground that it is a mere matter 
of opinion. Major Blocksom, the witness, was not there that night, 
and it seems to me that it is not proper to ask him to state what his 
opinion was on the subject in question. 

Associate Counsel for the Accused. May it please the court, as 
I have stated previously, this witness is a witness who has been 
brought in largely to testify as to the results of a certain investigation 
he made down there at Fort Brown, and he has been permitted to 
testify about the results of this investigation. Now, one of the par- 
ticular features of the investigation by him was an effort to determine 
the responsibility on the part of the officers at Fort Brown, and we 
have shown through the witness that he made use of very exhaustive 
efforts to determine that. And there are certain points that were 
developed by this witness in reaching that determination that w^e 
think proper to appear before this court. There were witnesses at 
the command of this officer, as inspector down there, who are not 
available to us to present here before this court ; the conditions have 
been changed so largelj^ ; the post has been abandoned ; we would 
not have the facility for bringing these things before the court; we 
could not bring the witnesses ; but this officer, who investigated it, is 
before the court, and we have shown, and he has been permitted to 
show in person, and the prosecution has been permitted to show, just 
in what capacity this officer went down there, and he has given his 
testimony along these lines; and this question refers to exactly the 
same thing, may it please the court. It refers particularly, also, to 
certain paragraphs in the Guard Manual, to which this witness has 
already testified, and that come under this examination of the para- 



145 

graphs of the Guard Manual. It was certainly the duty of this officer 
to determine whether these })aragraphs in the Guard Manual were 
carried out, and we want the result of that particular investigation' 
on the part of the witness. Technically, may it please the coutt, it 
may be a question of opinion, but broadh' it is for the result of the 
investigation of (he conditions that were existing on the 13th of 
August. * 

The JrixiE-AnvocAiT-]. May it please the court, it is immaterial 
whether this was developed in the course of official investigation or 
not. It remains simply a matter of opinion, and my understanding 
of the facts is that Major Blocksom went there primarily to investi- 
gate the shooting up of the town, which occurred on the night of 
August 18, and only incidentally in the course of this investigation 
about the shooting did the question of the actions of the officers on 
that night come up. He was not making an investigation, as I 
understand it, with the view of ascertaining whether any of the offi- 
cers were guilty of any neglect at all, but he was down there to inves- 
tigate the shooting and to ti*y to find out Avho did the shooting, and 
that was the purpose he was sent there for. The question as asked 
calls purely for a matter of opinion, and on that ground I object to it. 

The President. Let the stenographer read the question again, 
please. 

The reporter read the question to the court, as folloAvs : 

Q. Major, what conclusion did you get as to Captain Macklin's sleep that 
night? 

The accused, his counsels; the reporter, and judge-advocate with- 
drew, and the court was closed; and, on being opened, the president 
announced in their presence as follows: ■ 

The objection of the judge-advocate js sustained. 

Q. jNIajor, did you make any investigation as to whether or not 
anybody else was sleeping throughout the trouble at Brownsville on 
the night of August 13? — A. I did not make any sj^ecial investiga- 
tion, but I heard of no other person so sleeping. 

Q. Major, did you investigate to see whether or not this particular 
paragraph of the manual was carried out : 

When an alarm is raised in camp or garrison the guard will he formed imme- 
diately. If the case be serious, the proper call will be sounded, and the com- 
mander of the guard will cause the commanding otficer and the officer of the 
day to be at once notified? 

A. Yes, sir. The sergeant of the guard told me that he had formed 
the guard immediately and sent for the officer of the day, and, I 
believe, the commanding officer; but I think the commanding officer 
was out there before the messenger got to his house. That is my 
recollection. 

Q. Did 3'ou ever previously state that you believed this not to have 
been an honest effort? 

The Judge-Advocate. Just one moment. Inasmuch as the court 
sustained the objection of the prosecution as to Major Blocksom's 
opinion as to whether an honest effort was made bj' the sergeant of 
the guard to arouse the officer of the day or send word to the com- 
manding officer, I think that this question is objectional)le. because 



146 

if such statement ever were made, it would simply be a question of 
opinion. 

(By request of the court the reporter read the question.) 

Associate Coitnsel for the Accused. May it please the court, I 
judge from the objection of the judge-advocate that it is based upon 
the specific ground that this is a matter of opinion, this being testi- 
fied to by the witness now. If it please the court, I am examining 
this witness on a certain paragraph of the manual which he has 
knowledge of and which he had in mind at the time of making the 
investigation down there at Fort Brown, and he has so far been con- 
sidered as an expert in the performance of this kind of duty; full 
reliance has been placed upon his conclusions in all this particular 
matter, l^-lien this officer appeared before the investigating commit- 
tee he testified upon this particular matter, and it is in relation to 
that particular investigation in which his evidence was considered as 
that of an expert, which was the only means that they had of deter- 
mining that point, and I ask that this particular matter be allowed to 
come before this court in the same way. 

The Judge- Advocate. May it please the court, the witness was not 
called as an expert. He was called because he was an officer sent 
down there to investigate the circumstances, in the course of which 
investigation he had occasion to talk with the officer of the day with 
reference to his whereabouts at the time of the shooting on August 
13. That is the main point for which Major Blocksom was called. 
He was also asked whether he saw marks of bullet holes in the house, 
and where they were. Aside from that I do not think that the prose- 
cution has gone very deeply into his investigation down there; and 
it makes absolutely no difference whether he was there investigating, 
or whether he was there unofficially, in so far as the admissibility or 
nonadmissibility of testimony showing what his opinion was is con- 
cerned — that is, now, about anything that happened down there; and 
it is merely another method, it seems to me, of getting before the 
court matter that has been objected to and the objection to which 
has been sustained — it is merely another method of bringing it out, 
and I object to it. 

The President. I will ask the stenographer to again read the 
question. 

The Judge-Advocate. I will ask the reporter to read the previous 
question, the objection to wdiich was sustained by the court, and then 
read the present question. 

The reporter referred back to his notes and read the questions, as 
follows : 

Q. From ydur investigation of that matter. Major, was the result of that 
investigation that the effort made was an honest effort or not on the part of the 
guard? 

(Objection of prosecution sustained I\y the court.) 

Q. Did you ever previously state that you believed this not to have been an 
honest effort? 

The Judge- Advocate. I have nothing further to state, may it please 
the court, except I merely call attention to the form in which this 
question was asked before and to the present form. It is merely 
another way of getting at the same result, and does not change the 
force of the objection. It is a matter of opinion, pure and simple. 

The accused, his counsels, the reporter, and judge-advocate with- 



147 

drew, and the court was closed; and, on being opened, the president 
announced in their presence as follows: 

The objection of the judge-advocate is sustained. 

Redirect examination by the Judge- Advocate : 

Q. Major, how many people did you talk to who were meml)ers of 
the garrison of Fort Brown and who were present in the post at the 
time this siiooting occurred and the bugles were sounded, who told 
you that they were awakened by either the shooting or the bugle 
calls, approximately ? Were there a dozen or twenty or more or 
less, or what?— A. Well, everybody that I spoke to on the subject, 
except j)ossibly two or thicc. ;-ai(l they were awakened by the sound 
of the shooting. 

Q. Downtown did you ([uestion a considerable number of i)eople 
who lived out a distance from the post? — A. I did. 

Q. And about how many residents of Brownsville did you question 
about the occun-ences of the night of August 18? — A. Oh, I ques- 
tioned someAviiere — probablv all together, somewhere between (50 and 
100. 

Q. Did any of these people you questioned claim that they slept 
through the shooting? — A. As far as I can recollect, the immediate 
Avitnesses of the shooting, or of the sound of the shooting, were 
awakened by the shooting itself. There may have been a few Avho 
were aAvakened by others, but I do not remember any. 

Question by the Coirt: 

Q. Did the people whom- you questioned relative to their being 
aAvakened live nearer the approximate locality of this firing than 
Captain JNIacklin, or farther? — A. They lived closer to the shooting 
than Captain Macklin — than Captain IMacklin's house Avas, 

A JME:\rBER requested that the court be closed. 

The accused, his counsels, the reporter, and judge-advocate Avith- 
drcAv. and the court Avas closed ; and, on being opened, the president 
announced in their presence as folloAvs : 

The court wishes to continue the examination of Major Blocksoni so far as to 
ask a few more questions by the court. 

(The court then, at 1 o'clock p. m., adjourned to meet at 2 o'clock 
p. m. of the same day.) 

The court met, pursuant to adjournment, at 2 o'clock p. m.. April 
20, li»OT. 

Present: All the members of the court and the judge-advocate. 

The accused, his counsels, and the reporter Avere also present. 

The President. At the request of a member the court will he closed. 

(The accused, his counsels, the reporter, and the judge-advocate 
withdreAv and the court Avas closed, and on being opened the presi- 
dent announced as folloAvs: 

The court desires to ask Major Rlocksoni a fcAA- questions. 

Maj. A. p. Blocksoni. a Avitness for the prosecution, Avas recalled 
by direction of the court, and being reminded that he Avas still under 
oath, further testified as folloAvs: 

Reexamination b}'^ the Court: 
Q. INIajor Blocksom, during your investigation upon the Browns- 
ville aifair, Avhom did you conA'erse Avith Avho said he Avent to aAvaken 
Captain Macklin? — A. I conA'ersed with the sergeant-major. 



148 

Q. His name was Taliaferro? — A. His name was Taliaferro; but 
I do not recollect what the conversation was, whether I asked him 
about going to wake up the officer of the day or not — I have for- 
gotten. I had several conversations with him. 

Q. That was Sergeant-Major Taliaferro? — A. Yes. 

Q. Did you talk to anyone else who said he went to awaken Cap- 
tain Mackiin; do you remember questioning anyone else? — A. I do 
not recollect of am^one else. 

Q. For instance,' Corporal Madison? — A. I talked with Corporal 
Madison, but I do not recollect whether I asked him that question or 
not; and I do not know whether I talked with Private Hairston or 
not. I do not believe that I did. 

Q. You do not remember ? — A. No. 

Q. You do not remember, then, of talking with anyone else? — 
A. No. 

Q. With any other witness ? — A. No. 

Q. I think the witness understands — ^but we want him to tell us 
what person or persons he conversed with on his investigation who 
had stated they had gone or were sent to awaken Captain Mackiin? — 
A. That is right. I do not remember certainly that I asked those 
questions. I know that I conversed with those men that I have 
stated I did. 

Q. Then did you converse Avith anyone who told you anything con- 
cerning his effort or efforts to awaken Captain Mackiin? — A. Noth- 
ing but what I have stated. I do not remember anj^one else. I think 
it is probable that I might have talked to the sergeant-major on the 
subject, but I do not remember what he told me. 

Q. You do not remember what he told you ? — A. No ; and the same 
with Corporal Madison. 

Q. If you talked with them, you do not remember what they told 
you about it ? — A. I do not remember what they told me ; no. 

Q. I will ask one more question. Is there any fact within your 
knowledge tending to show the character of the effort made by any- 
one to awaken Captain Mackiin? — A. No direct testimony that I 
know of. The only thing — the only evidence that I know of is what 
I have already related: what Captain Mackiin himself told me, 
what the commanding officer himself told me, what the sergeant of 
the guard told me. 

Q. And that is all ?— A. That is all. 

Q. And that you have already related? — A. That I have already 
related. 

Q. I would like to ask Major Blocksom i^ in connection with his 
investigation at Brownsville he went into the matter of Captain 
Macklin's alleged failure to turn out at the time of this alarm; and 
if he did so, what was the result of his inquiry at that time? — A. I 
would like to have that read over. 
(The reporter read the question.) 

A. Yes ; I was convinced 

A Member. I would like to say, before the Major answers that ques- 
tion, I would like to say to the court that that question is in line with 
the questions that have been objected to. but inasmuch as it comes 
from the court, of course it will be construed legitimately by the 
court. 



149 

The Judge- Advocate. Does the prosecution iinderstiind tliis (]ues- 
tion is by the court or b}^ a member of the court? 

The Pkesident, It is a question by a member, of course. 

The Judge-Advocate. Then, if that be the case, the prosecution 
will have to object to the answer to the last part of that question, as to 
the conclusions jNIajor Blocksom reached in the matter. I think if he 
were to amplify his answer to the first part it would be brought out 
to the court that he did not make any especial attempt or. rather, any 
thorough examination of the facts connected with Captain Macklin's 
absence that night ; that merely came in incidentally during the inves- 
tigation in which he was trying to determine who did this shooting, 
and I think if that fact is made clear to the court possibly it would 
save a loss of 'time by the prosecution's objecting to opinion evidence. 
I think if the member would be kind enough to ask Major Blocksom 
to state the degree of thoroughness that he went into this subject of 
Captain Macklin's alleged failure to appear, it would show that the 
witness did not investigate that point particularh^ 

A Member. Mr. President, I will say, in explanation of this ques- 
tion, that it has been entirely the object of counsel to get at the result 
of INIajor Blocksom's investigation at the time he was on the ground, 
and the judge-adA-ocate has objected to that line of questioning and 
the court has decided that it was improper. I think it is entirely 
within the province of the court to go into that. We can control the 
nature of the evidence, and that will assist us in judging this case. 
I think it is a legitimate question to find out from this witness wdiat 
were his conclusions at the time he was on the ground. 

The President. Is the member willing to have his question modi- 
fied? 

A Me:mber. Yes, sir. 

The PREsroENT. Then let the stenographer strike out the part that 
is objected to. 

The reporter thereupon read the question as modified, as follows: 

Q. I would like to ask Major Blocksom if in connection with his investigation 
at Brownsville he went into the matter of Captain Macklin's alleged failure to 
turn out at the time of this alarm? 

The President. Now, if there is no objection, w411 the witness 
please answer the question as modified? — A. I went into it to a cer- 
tain extent, wdiich I have related almost in full as far as I recollect. 
T drew my conclusions mainly from Avhat Major Penrose told me, 
from Avhat Captain Macklin himself told me, from what the sergeant 
of the guard told me, and I think from what Sergeant-Major Tallia- 
fero told me in the matter. I might 'add, also, which I did not state 
in my original examination, that Major Penrose told me that when 
Caj^tain IVIacklin reported to him. about 1 o'clock, that he was in per- 
fectly proper condition^ — I think I left that out — and I think one or 
two other officers told me that same thing. I have forgotten Avho 
they were. 

Q. I would like to ask Major Blocksom what the sergeant of the 
guard did tell him, so far as he can remember — I would like for the 
witness to tell us in detail what the sergeant of the guard did tell him 
about his efforts ? 

The Judge- Advocate. If the court please, that is absolutely hear- 



150 

say testimony, but the prosecution has no objections if the defense 
has none. 

The defense did not indicate that they had any objections to the 
witness's answering the question. 

A. The sergeant of the guard told me that he formed the guard 
when the shots were fired and the call was made by the sentinel, that 
he sent for the officer of the day and the commanding officer, and that 
a few minutes — well, a very short while after the firing commenced, 
that he himself had the call to arms sounded. He said that he had 
sent a man up several times — that is, to the best of my recollection — 
but that he could not find him. I did not ask of him — or at least I 
have no recollection of asking him or receiving a reply — as to 
whether the man sent up there finally found Captain Macklin. I 
did not go further into the subject, because I was convinced — that is, 
I had already drawn mv conclusions (I am not going to say what 
they were) from what I had already heard. 

Q. Major, you have stated that you went into this particular fea- 
ture of your investigation to a certain extent? — A. Yes. 

Q. Will you please tell the court why you pushed this particular 
feature of your inquiry no further? — A. Because, as I just said, the 
evidence I had already received convinced me there was no use in 
going any further ; I had received sufficient evidence already. 

Q. Do you remember the name of the sergeant of the guard? — 
A. Reid — Sergeant Reid was his name. 

Redirect examination by the Judge- Advocate : 

Q. Major Blocksom, when you were sent to Fort Brown, you were 
sent there for the purpose of investigating the shooting up of the 
town of Brownsville, alleged to have been committed by certain 
enlisted men of the Twenty-fifth Infantry, weren't you ? — A. Yes. 

Q. And you were not sent down there for the purpose of investi- 
gating the conduct of any of the officers stationed down there, further 
than to find out Avhat they knew about the shooting and to try and 
determine the responsibility for that shooting; was that not so? — 
A. That Avas the main object of it. 

Q. And this question of Captain Macklin's alleged failure to be 
present with the guard or with the troops after the alarms were 
given on the night of August 13 did not come up until after you 
reached there, did it? — A. No; it did not come up until several days 
after I had reached there. 

Q,. And then you were satisfied by your conversation with Captain 
Macklin and other circumstances that you knew of down there that 
his statements as to his whereabouts on that night were correct— you 
were satisfied in your own mind that he was where he claimed to 
be? — A. I was. 

Q. And you consequently pushed this matter no further and did 
not interview or try to get hold of all the messengers that were sent 
to wake him up. did you? — A. No; I did not. 

Q. And, Major, when you stated that your impression was that 
the sergeant of the guard told you that he sent a man up there sev- 
eral times, are you sure that he said he sent a man up there several 
times or that he sent up there several times ? Or did you think that 
he sent the same messenger up each time? — -A. My remembrance is 
that he used the expression he " sent a man up there several times." 

Q. It might have been A. It might have been different men. 



151 

Recross-examination by the Accused: 

Q. Major, did von ever recommend the trial of Captain Mack- 
lin?_A. No. ■ 

Q. And you were called before a committee that was investigating 
this matter as a witness for that purpose? 

The JunoE-AnvocATK. If the court please, if the defense wants to 
go into a lot of new matter outside of what has been brought out by 
the court, the prosecution, I think, Avill 

Associate Counsel for the Accused. Just that question, maj^ it 
please the court. That is the only remaining question, 

(The reporter read the question.) 

Associate Coi^nsel for the Accused. I will modify the (juestion 
to read : 

Yoii wore (•.■lUcd hofoiv :i (•(unniitteo that was iiiv(>sti.i;atiiifi this (iiu'stion as a 
witness? 

The Judge- Ad\oc ate. I will have to further object to that. I 
will have to ask the counsel as to what " this question " refers, 
wdiether it refers particularly to Captain Macklin or to the condi- 
tions generally down there? 

Associate Counsel for the Accused. The conditions generally, 
provided it is assumed that it includes this question also. I do not 
mean for my question to refer to this particular matter exclusively, 
but the question assumes that this entire matter was being investi- 
gated, including the question of the responsibility of Captain Mack- 
lin. This committee was investigating that particular feature in 
connection with the others. ■ 

The Judge-Advocate. May it please the court, then, if counsel 
will kindly just reframe that question, so that it will be absolutely 
clear. 

Associate Counsel for the Accused. All right, sir. 

Q. Were you called before the second division of the General 
Staff", Major Blocksom, as a witness? — A. I Avas not called exactly 
as a witness. I was called to tell them certain results of my investi- 
gation at Brownsville, with a view— well, I will end with that. 

Q. What was the purpose of this examination of that General 
Staff? — A. The purpose of it, as I understood it, was to determine 
whether or not Major Penrose and Captain Macklin should be tried 
l)efore a general court-martial. 

Redirect examination by the Judge-Advocate : 
Q. No charges up to that time had been preferred against either 
Major Penrose or Captain Macklin, had they? — A. None. 

Q. And do 3'ou know wdiether the charges in this case were pre- 
pared as a result of that investigation by direction of the Chief of 
Staff? — A. They Avere prepared, but not altogether, as the result of 
that investigation. 
(Excused.) 

The Judge-Advocate. May it please the court, the prosecution is 
unable to proceed further until the arriA'al of tAvo Avitnesses, Private 
Rogers and Corporal Burdett. 

The court thereupon adjourned at 3 o'clock p. m. to meet at the 
call of the president. 

Roger S. Fitch, 
First Lieutenant^ First Cavalry^ 

Judge-Advocate. 



152 

Headquarters Department or Texas, 

San Antonio^ Tex., April 27, 1907. 

The court met, pursuant to call of the president, at 1.30 o'clock p. m. 

Present: Maj. Everard P]. Hatch. Twenty-sixth Infantry; Maj. 
Harris L. Roberts, Twenty-sixth Infantry; Maj. George W. Gatchell, 
Artillery Corps; Capt. George W. Goode, First Cavalry; Caj^t. 
David J, Baker, jr., Twenty-sixth Infantry; Capt. De Rosey C. 
Cabell, First Cavalry ; Capt. Hanson E. Ely, Twenty-sixth Infantry ; 
Capt. George E. Houle, Twenty-sixth Infantry ; Capt. Lincoln F. 
Kilbourne, Twenty-sixth Infantry: Capt. John F. Preston, Twenty- 
sixth Infantry; Capt. Murray Baldwin, Twenty-sixth Infantry; 
Capt. Samuel B. Arnold, First Cavalry; Capt Adrian S. Fleming, 
Artillery Corps; First Lieut. Roger S. Fitch, First Cavalry, judge- 
advocate. 

The accused, his counsels, and the reporter were also present. 

The reading of the proceedings of previous meetings was dispensed 
with. 

The judge-advocate then addressed the court as follows: 

Since our last adjournmeut a member who has been absent through the pro- 
ceedings up to date has returned — Capt. Hanson E. Ely, Twenty-sixth Infantry. 
Has the defense any objection to his sitting as a member of this court? 

B}^ Counsel for Accused. The defense has no objection. 

By the Judge-Advocate. Then, may it please the court, the prose- 
cution will have to object to Captain Ely, on the ground that he has 
been absent during the taking of material and important evidence, 
and, hence, by paragraph 1, on jDage 28 of the Manual for Courts- 
Martial, he shoidd not sit in this case. There have been about three 
hundred and thirty-odd pages of record up to date, and the prosecu- 
tion must object to Captain Ely sitting on the court. 

The challenged member had no reply to make. 

The accused, his counsels, the reporter, the challenged member, and 
the judge-advocate then withdrew and the court was closed, and on 
being opened the president announced, in their presence, as follows : 

The objection of the judge-advocate is sustained, and the member is excused 
from further attendance in this case. 

Captain Ely then withdrew. 

Joseph Rogers, a witness for the prosecution, was duly sworn, and 
testified as follows: 

Redirect examination by the Judge- Advocate : 

Q. What is your name, residence, and present occupation? — A. 
Joseph Rogers is my name; Atchison, Kans.; railroad porter; that 
is my occupation at present — for a while. 

(Upon motion of a member, the accused, his counsels, the reporter, 
the witness, and the judge-advocate then withdrew and the court was 
closed, and on being opened the accused, his counsels, the witness, 
the reporter, and the judge-advocate resumed their seats. There was 
no announcement made by the court.) 

Q. Do you know the accused ? If so, state who he is. — A. Yes, sir ; 
Captain Macklin. 

Q. What regiment? — Twenty-fifth Infantry. 

Q. Did you ever serve in Company C, Twenty-fifth Infantry ? — 
A. Yes, sir. 



ir33 

Q. Did YOU ever serve in any other company ? — A. No, sir. 

Q. How long were you a member of Company C, Twenty-fifth 
Infantry ? — A. About six years and some months, I can't remember 
exactly how many months, but it was six years. 

Q. \Vcre you a private soldier on August 13, 1906, in Company C, 
Twenty-fiftii Infantry? — A. Yes, sir. 

Q. Where were vou stationed at that time? — A. Fort Brown, 
Tex. 

Q. Did you go on guard on the morning of August 13? — A. 
August 12 — August 13 ; yes, sir. 

Q. To what post and what relief were you assigned? — A. No. 3 
post and third relief. 

Q. AVho was corporal of that relief? — A. Corporal Franklin. 

Q. Did vou hear anvthing unusual at or about midnight on August 
13?— A. Yes, sir. 

Q. AAliere were you at the time?— A. I was at the guardhouse. 

Q. ^^liat were you doing? — A. I was lying on my bunk, reading. 

Q. What was it you heard ? — A. I heard firing on the outside. 

Q. State how many shots you heard, and what happened right 
after that, so far as you are concerned. — A. I heard about two or 
three shots, and then the sergeant of the guard, he came over and 
pulled me by the shoulder and asked me to go over and wake the 
officer of the day up and tell him to report to the guardhouse right 
away, and I went over. 

Q. Was there shooting going on at the time you left the guard- 
house? — A. Yes, sir; the shooting was going on then. 

Q. A^Tiat kind of shooting? — A. I don't exactly know what kind; 
I couldn't tell what kind of guns; but shooting on the outside. 

Q. Much or little of it? — A. No, sir; it was going on rapid when I 
started. 

Q. Now% state what happened after yon left the guardhouse. — A. 
Just as I was crossing in front of Major Penrose's quarters — ^I crossed 
over behind him. about 15 or 20 yards — then I heard him hollering 
towards the guardhouse to sound '' Call to arms," and then I Avent on 
to Captain Macklin's house. 

Q. Was there any response to this order of Major Penrose's to 
sound " Call to arms ? " — A. AYhy, yes ; the trumpeter sounded " Call 
to arms " right away. 

Q. "What trumpeter?— A. The trumpeter that was on guard — Rob- 
inson was his name. 

Q. Did you hear any more trumpets than that? — A. Yes, sir; I 
heard one or two. 

Q. How long did they continue to sound "Call to arms?" — A. I 
guess about five minutes or more, probably. 

Q. You say you Avent on to Captain Macklin's house ? — A. Yes, sir. 

Q. How long did it take you to go from the guardhouse to Captain 
Macklin's quarters — A. I don't know. 

Q. Were you walking or running or hoAv? — A. Well. I doubled 
timed a while and walked a while, so I don't knoAv exactly how long 
it took me to go over there. 

Q. About how long do you think it took you — a minute or two 
minutes? — A. Probabl}' about two minutes; between two and three 
minutes. 



154 

Q. Had you ever been to Captain- Macklin's quarters before — A. 
Yes, sir. 

Q. When? — A. Oh, several times before. I had fatigued over 
there, and different times — various times — I went over there with mes- 
sages, and then I went over to see him on favors for one stuff and 
another. I have been there very frequent. 

Q. You say you were on fatigue over at his house, what kind of 
fatigue?— A. Helping to move his furniture in tlie house, etc. 

Q. That is, wdien you first went to Fort Brown ? — A. Yes, sir. 

Q. Now, which Avere Captain Macldin's quarters down there? — A. 
The last quarters that was next the river; that is, next to the house 
the quartermaster's clerk lived in ; that is, his house was next to the 
river and Captain Macklin's next, the road divided the two of them, 
the road that went around in rear of the officers' quarters, that road 
divided the two of them. 

Q. So that Captain Macklin's (]uarters were the last set of officers' 
quarters towards the river, is that right ? — A. It was the last set, but 
not on the corner, though. It was in the quarters before you came to 
the last end. It Avas on the east side, I think, he was staying in. 

Q. A^^iich was east down there, towards the river or towards the 
hospital ? — -A. No ; the river was Avest and toAvards the hospital Avas 
supposed to be east. 

Q. NoAV, state again Avhere Captain Macklin liA'^ed. — A. ^YhJ he 
liA-ed in the last house and in the set of quarters next to the hospital ; 
that is on this side, on the east side. 

Q. Captain Macklin didn't occupy the Avhole house then? — A. No, 
sir. 

Q. Did he live in the side towards the hospital or the side towards 
the river ? — A. In the side toAvard the hospital. 

Q. Here's a photograph. I will ask you Avhether you recognize that 
at all and Avhat it is? [Handing Avitness photograph, marked for 
convenience " 6 " and hereto appended and marked ■' 6."] — A. This 
here's the quarters. 

Q. What is that small building on the right ? — A. Small building 
is AAdiere the quartermaster's clerk liA-ed, and here's Avhere Captain 
Macklin lived, and in this end here is Avhere he liA^ed. This was the 
vacant end right here on the corner. 

Q. So that that building you see in the center of the photograph 
is the double set of quarters Captain Macklin liA^ed in?— A. Yes. sir. 

Q. And did he live in the side you see or the other side? — A. In 
the other side, right here. 

Q. You say you helped move furniture in there? — A, Yes, sir. 

Q. In those quarters? — A. Yes, sir. 

Q. AYliere did Captain Macklin sleep in the various times you had 
been over to see him, do you knoAv? — A, I understood he slept 
upstairs. 

Q. Did you ever go upstairs to his bedroom?— A. Yes; I was up 
there once. 

Q. Under what circumstances? — A. One morning I Avas up there — 
I Avas on sick report and had to go to the hospital, and as the rule was, 
I had to report to him before going to the hospital, and the man in 
charge of quarters took me up there to his room. 

Q." Where did you go Avhen you Avent upstairs? Did you go 
straight ahead or did you turn to go into his room, or Avhat? — A. I 



155 

just stopped at tho head of the stairs, because that was all that was 
needed. The man that had the book he stopped at his door — knocked 
at his door. 

Q. Do you remember how many doors there were up there? — 
A. No, sir; I can't remember. 

Q. Well, now. on tliis night of the 13th of August, when you were 
carrying this message to the officer of the day, state just what you did 
when you reached Captain Macklin's quarters. — A. AATiy, I went 
and knocked. 

Q. Did you open the door: were either or both doors closed? — 
A. Both doors was closed and I opened them both and knocked — 
that is, on the side of the stairway. 

Q. Did you knock with your hand or how? — A. First I knocked 
for a while with my hand — that is, about tAvo raps with my hand, 
and then I took the butt end of the gun and rai)ped. 

Q. "\Miat else did you do? — A. Then he answered. T told him, 
" The sergeant of the guard says to report over to the guardhouse 
right away,'" and he said, " All right." 

Q. Then what did you do? — A. I went back to the guardhouse. 

Q. Was the shooting still going on Avhen you reached the guard- 
house or had it stopped? — A. Xo; it was going on still. 

Q. Was it going on when you were in Captain Macklin's quar- 
ters? — A. Yes, sir. 

Q. How do you know it was going on then ? — A. I could hear it. 

Q. Could you hear it plainly or indistinctly? — A. No, sir; I could 
hear it plainly — that is, just the same as if I was outside. The doors 
were open. Heard it just as plainly as if I Avas on the outside. 

Q. Was there anything on the porch of Captain Macklin's quarters 
at all, do you remember? — A. AMiy, yes; there was about two or three 
chairs and a little table. 

Q. "\^liat kind of a table? — A. A little folding table, supposed to 
be a field table, I think they call it. 

Q. One of those tables that has legs that fold up, or was it an 
ordinary quartermaster table? — A. No: the legs folds up to the table 
itself. Folding legs, just like — something. I don't know — -just made 
on the order of a cot. 

Q. So that the legs fold u]) ? — A. Yes, sir. 

Q. Had you e^er seen those there before? — A. Yes; I helped fix 
them. 

Q. You what? — -A. I fixed it there once. 

Q. You put it up? — A. The man he had working for him. him and 
me fixed it up there once : that is, straightened it out. 

Q. Did you see any light in those quarters? — A. No, sir; I couldn't. 

Q. Could you see any light from the outside? — A. No, sir. 

Q. After you got inside, could you see any light? — A. No, sir. 

Q. Did you have any talk with Captain Macklin the next day 
with reference to your calling him the night before? If so, state 
when and where it was. — A. Why, yes ; the next morning the sergeant 
of the guard told me to report in to the officer of the day in the 
guardhouse; said he wanted to see me, and when I went in he asked 
me if I had been to his house last night, and I told him yes; he asked 
me if I called him and T told him yes; he said, '* What did I say? " 
and I said, "All right," and that was all. 

Q. Did he saA' anything to you? — A. Oh, he said he Avas asleep; 



156 

probably thought he was dreaming or something of the kind. He 
didn't exactly understand and probably was dreaming, he said. 

Q. Did you go uptown on the night of August 13 as a member 
of the patrol? — A,. Yes, sir. 

Q. Whom were you with? — A. Corporal Franklin and about four 
other men. 

Q. What did you go uptown for on this patrol ? — A. A\^iy, we were 
sent out there to — ^we was told; that is, the orders was if we seen 
any soldiers out in town to line 'em up and bring 'em in, march them 
in, as passes was cut off at 8 o'clock. 

Q. Do 3^ou know why these passes were cut off? — X. No, sir. 

Q. What time did you get back from this patrol, about? — A. I 
don't know ; a little after 9 o'clock, somewhere about that, I think. 

Q. Did you have a watch that night? — -A. No, sir. 

Q. Was every sentinel on guard posted at the regular time, or did 
the patrol make any difference? — A. Yes, sir; the patrol caused 
them — the time to be split up on account of the patrol being sent 
out, and the guard wasn't regular. 

Q. Who relieved you on No. 3 post that night, do you remember, 
before the shooting began? — A. Hairston, of B Company. 

Q. Hairston ? — A. Yes, sir. 

Q. Do you remember what time it was you were relieved, approxi- 
mately; just your best judgment as to when it was? — A. Between 
ten and fifteen minutes after 11. 

Q. You think you were relieved after — taps is at 11 o'clock down 
there ? — A. Yes, sir. 

Q. And you think you were relieved at 10 or 15 minutes after 11 ?— 
A. Yes, sir; about that time. 

Q. Where did you meet Private Hairston when you were relieved 
by him; do you remember? — A. Eight in rear of Major Penrose's _ 
quarters, at the east-end corner, just as I was about to come around in 
front, why, I hit the relief there. 

Q. Was Hairston alone or was some noncommissioned officer with 
him? — A. No, sir; Corporal A'^Hiieeler was with him; that's the cor- 
poral of his relief. 

Q. And it's your best recollection that that happened after taps 
and not before taps? — A. What happened? 

Q. That you were relieved by Hairston. — A. Yes; I wasn't re- 
lieved until after taps. 

Q. When you met Major Penrose as you were crossing the parade 
ground, or when you crossed in rear of him, were you near enough to 
him to see him, or did you merely tell who it was by his voiCe? — A. 
Oh, I coidd see him, and then I could tell him, too, by his voice — 
that is, I wasn't anv farther from him than about 15 yards — between 
15 and 20. 

Q. NoAv, are you positive you went to Captain Macklin's quarters 
that night or not? Couldn't you have gone to some other quarters 
by mistake? — A. No, sir; there wasn't any mistake, because the quar- 
ters is plain enough for anybody to understand, even if they had 
only been there a day. 

Q. Had you ever seen those chairs and this table out on the porch 
before? — A. Yes, sir. 

Q. They had been there before on other occasions when you visited 
his quarters ? — A. He generally kept them there, because he generally 



157 

Avrote — ho writes, you know . oviieralh' had to (l(j some writing there 
in the (h»y. I iiiiess he eouhhTt — it was too warm on the inside and 
lie kept the table out there. He was always there every time I went 
there. 

Q. So that that made you feel eertain it was Ids quarters, ilid it? — 
A. Yes, sir. 

Q. How many sets of quarters down there, officers' quarters, aside 
from the commanding officers' quarters; do you remember? — A. 
Between five and six, sir; I can't exactly say, but I think there were 
five or six sets. 

Q. That is, single sets or double sets? — A. Xo, sir: they are all 
double. 

Q. You mean six doul)le sets, or do you mean six single sets? — A. 
Six double sets. 

Q. How did the stairway run in these houses — in this house you 
went into? You said you pounded on the stairway with your gini. — 
A. The stairway run up against the wall, right straight up against 
the Avail, that Avay. 

Q. As you Avent in the front door Avas the stairAvay to your right 
or your left ? — A. To the right. 

Q. Whereabouts did it start and Avhich Avay did it run? Hoav 
Avould you get in there to go upstairs? Say you entered the front 
door and wanted to go upstairs; describe hoAv you Avould go in. — A. 
Just as though you Avere coming in that door; come right straight in 
and then you Avould have to go this way to go upstairs. 

Q. You turn Avhich way, to the right or left ? — A. To the right as 
you come in. 

Q. Then Avhich Avay do the stairs slant ? Do they run from the 
ground floor toAvards the rear or do they run from the rear of the hall 
towards the front? — A. Yes; that's it, they run from the rear of the 
hall — that is, the floor — toAvards the front room. 

Q. Are you sure they didn't run at right angles to the hall — that is, 
run up sideAvays in the quarters? — A. No, sir; there's only one set, 
just that one stairAvay, and it runs straight from back to front, or 
from rear to front. 

Q. You said it ran alongside the Avail, I belicA^e? — A. Yes, sir. 

Q. Was this stairway boarded up, or did it haA-e an ordinary hand 
rail on it? — A. It is boarded uj) from the l)ott()ni to the step'^. 

Q. But so far as the hand rail or the banisters Avere concerned, Avere 
they boarded up. or Avere they the Avay they are in ordinary stairs? — 
A. Why, no; they liaAe got banisters and then board down beloAv — 
that is, they are nailed on beloAv the steps. Here's the steps and here's 
the l)anisters and the board is doAvn here [indicating boarding is 
beloAv leA'el of steps rather than aboA'e]. 

Q. Hoav far doAvn does this boarding run; does it run to the floor 
or does it extend piu't Avay or Avhat? Hoav Avide is it? — A. I don't 
exactly know hoAv Avide it is or how long, but I knoAv the board is 
made in a Avay to hide the bottom of the stairs — that is. the steps 
covered. That's the best Avay — I don't knoAv any more about it. 

Q. I Avould like to haA'e you explain Avhether this — the stairs run 
from the ground floor to the second floor; noAv, is all the space under 
the stairs boarded up or is there just some boards nailed on there, or 
hoAv is it ? — A. The Avhole stairs is boarded up. 

^M•.i—{)- M n 



158 

Q. B3' how much board? — A. I can't say, I don't know, and I 
can't guess at it because I don't know how much board. 

Q, You don't know how far that extended? — A. No. 

Q. But there was enough for you to pound on with your hands and 
with the butt of your rifle ( — A. Yes, sir. 

Q. Did this boarding run up above the level of the steps — that is, 
v/here the hand rail was — or was that ordinary banisters? — A. 1 don't 
know ; I can't remember that much about it. I don't really know how 
it was fixed up, but I know there w^as boarding down there wdiere I 
knocked on. I guess it w^as put there for that purpose, to hide the 
stairway — that is, the steps. 

Q. Can you make a drawing here and show what it was like, look- 
ing at it from the side. 

(Witness could not draw diagram, so the judge-advocate drew one, 
which is hereto appended and marked " 7.") 

Q. Now, in this diagram, say you are looking at the side of the 
steps from the hall, this lower line represents the first floor, see? — 
A. Yes, sir. 

Q. That's the second floor, here are the steps going up; where- 
abouts is that board ? — A. Why, right here. 

Q. Can you draw it on there? — A. Yes, sir; here's the board [Avit- 
ness indicates on plat]. 

Q. Where does the board run ( — A. Covers the whole of the step 
here like that, from the floor. 

Q. So is this the only board or is all that board? — A, All of this 
is board here, supposed to be boarded right along the steps. 

Q. What is this? — A. This is the floor. Here is the door, you come 
in here, and here are the boards the first thing you open the door, 
that board covers the steps. 

Q. As you go into the quarters and open the front door what is 
on your right i — A. The steps. 

Q. But before you get to the steps what is there on your right ? — 
A. I don't knoAv ; I can't remember. 

Q. Do you remember what there is on the left ? Where do you go 
to get into the rooms in that house? — A. There is a room to the left 
just as you come in the house. Just as you come in the door there's 
one room right to the left. 

Q. Any other rooms downstairs ? — A. Yes, sir ; there is a kitchen — 
two rooms down below, I think. I can't be sure, but I think two 
rooms down below and the kitchen. 

Q. Then upstairs, do you know^ how many rooms there are? — 
A. No, sir ; I don't. 

Q. Was there anything in the hall there at all, that you saw, that 
night? — A. Yes, sir; I think there was some of his furniture back 
there; some of his baggage and stuff back there in the hall that had 
not been unpacked. 

Q. In the front part of the hall or the back part, do you remem- 
ber? — A. In the back part, just going in tow^ards the kitchen. 

Q. I don't understand about this boarding of those stairs. — 
A. Well, I explained it the best way I could ; I don't know any more 
about it. 

The court then took a brief recess, while a set of steps was pro- 
cured by the judge-advocate and brought into the court room. The 



159 

members of the court, tlie accused, his counsels, the reporter, the wit- 
ness, and the jud<!;e-advocate then resumed their seats. 

Q. Show on this set of stejis. Ko^rers. the way the l)oardingf on that 
staircase was; just go over there and point it out and exphiin to the 
court. — A. Here is the door, coming this way. and here is supposed to 
be the boarding, that covers this place all through here. Just like 
this, instead of coming here and stopping it goes all the way dowm. 
There's the place I rapped [witness indicated that the boarding ran 
from the stei)s down to the floor]. 

Q. Does that space nuirked " B " on this Exhibit 7 represent the 
space that was covered by those boards? — A. Yes, sir. 

Cross-examination by the Accused : 

Q. \Miere do you live. Eogers? — A. Why. in Atchison. Kans., for 
the present. 

Q. "What is your name — full name i — A. Joseph Rogers, sir. 

Q. Is your name C. J. Rogers? — A. Joseph Rogers or Charles J. 
Rogers. 

Q. AVhich is it, Joseph or Charles J.? — A. Well, it is either one, 
according to which I want to say. 

Q. Did you receive a telegram from Captain Lyon on the 22d of 
this month? — A. Yes, sir. 

Q. AVhat was that telegram ? — A. Why, lie requested me to appear 
here on this case, if possible. 

Q. Did you answer that ? — A. Yes. sir. 

Q. A telegram addressed to you as Joseph Rogers or C. J. Rogers 
in Atchison would reach you ? — A. Either one of them w^ould reach 
me, just the same either way. 

Q. Since you have been discharged, how many times have you tes- 
tified about this case? — A. Once, to my knowledge. 

Q. AVhere was that. Rogers? — A. In Washington. 

Q. And before whom? — A. AVhy. the committee there; that's all 
I know. 

Q. Senate committee? — A. Yes, sir. 

Q. Before you were discharged did you make any affidavits about 
the 13th of August— the night of the 13th of August — what occurred 
and your connection with it?^A. Yes, sir. 

Q. How manj^ of those affidavits ? — A. AVhy, I can't readily say. 

Q. AA^'hat ones do j'ou remember? — A. I can remember one before 
I left Brownsville. 

Q. Yes; before whom was that made — before what officer? — 
A. Captain Lyon. 

Q. AA'ere you examined by any inspecting officers? — A. Yes. sir. 

Q. AAliat ones? — A. I don't remember their names — his name — in 
fact, but he was at Fort Reno. 

Q. AA^is it Colonel Lovering? — A. I think that's his name. That's 
what I heard ; I don't know if that's his name. 

Q. Now, w'here were you. Rogers, on the night of the 13th of 
August, when this shooting began ? — A. I was on guard and at the 
guardhouse. 

Q. AA'hat were you doing at the guardhouse? — A. I was lying on 
my bunk reading. 

Q. AA'hat were you reading? — A. A novel. I think, or some other 
kind of book; I picked it up in the guardhouse there. 



160 

Q. You don't happen to know what it was, do j^ou? — A. Xot 
exactly. 

Q. Did you ever testify before that you were asleep at the time this 
shooting occurred? — A. AVhy, yes, sir. I never testified before I was 
asleep, but they asked me that in Washington and I told them it was 
a mistake ; I was not asleep. I never went to sleep that night at all 

Q. Do you recognize that affidavit ? Your signature there, particu- 
larly? [Handing witness paper.] — A. Yes, sir; thafs my signature. 

Q. What does that affidavit say about where you were at the time 
this shooting occurred? A. (Reading from affidavit.) Says that " he 
wa.s on guard and asleep inside the guardhouse when he was awak- 
ened by the sergeant of the guard calling " Outside guard.'." Well, 
of course, that's a mistake all through there. Simply because every- 
body else was asleep, you know, that don't signify they had to put 
that on there that I was asleep. I was not asleep and didn't tell 
anybody that I was asleep. 

Q. What you signed there isn't correct? — A. I didn't read it or 
else I could have told them that before. They asked me the same 
thing in Washington and I told them no. it was a mistake, because 
I was not asleep. 

Q. When Colonel Lovering examined you did he ask you that 
question, where you Avere on August 13, 1906, when the shooting 
occurred ? — A. Yes, sir. 

Q. And what did you answer? — A. I told him I was on guard. 
He asked me where I was, and I said at the guardhouse. 

Q. Did he ask you whether you were asleep or awake? — A. Xo, 
sir; he never asked me if I were asleep. 

Q. I will read you your affidavit before Colonel Lovering. 

By the Judge- Advocate. Have you an official copy of the affidavit 
made before Captain Lyon ? 

By Associate Counsel. No : but I will append this one to the rec- 
ord. [A true copv of said affidavit is hereto appended and marked 
"8."] 

By the Judge-Advocate. It is the desire of the prosecution that 
that affidavit be appended to the record. And with respect to the 
affidavit taken before Colonel Lovering, has the defense that affi- 
davit? 

By Associate Counsel. May it please the court, Ave haA^e only the 
record as it appears in the Senate document under Colonel Lovering's 
investigation at Fort Reno. There is an official copy of that docu- 
ment in the post, and the extract therefrom i$ proper eA'idence before 
a court-martial. This is identically the same thing: it is not marked 
" official copy '' is all. 

By the Judge- Adaocate. I haA'e an official copy of that. 

By Associate Counsel. Yes; I Avill use that, then. 

(The court then took a recess until 3 o'clock p. m., at Avhich hour 
the members of the court, the accused, his counsels, the Avitness. the 
reporter, and the judge-advocate resumed their seats.) 

Q. Rogers, on page 112 of the War Department publication, 
entitled " Discharge of Enlisted Men of the TAventy-fifth United 
States Infantry,'' there appears, as testimony giA^en by you before 
Colonel LoA^ering, of the Inspector-General's Department, Avho exam- 
ined you at Fort Reno, the folloAving questions and ansAvers. Please 



161 

state wlu'tlicr or not you made those answers to the questions asked 
you. 

By the Judge- Advocate. At what time was this ? 

By Associate Counsel. Se})tember 25, 1900. Col. L. A. Lovering, 
Fourth Infantry, Acting Inspector-(Trenerah This testimony was 
sworn testimony. 

Q. Where were you on August 13, 1900, when tlie shooting (.(jiiiiuenced? — A. I 
was at the guardhouse. 

Q. Asleep or awake? — A. Asleep, sir. 

Q. Who did you first see when you awoke? — A. The sergeant of the guard. 

Q. Are those your ansAvers to the questions? — A. Yes, sir; all but 
the asleep; I never told him I was asleep; he never asked me. 

Q. Then that is correct, except to the statement you were asleep? — 
A. Yes, sir. 

Q. And you did not answer you were asleep ( — A. Because he 
didn't ask me. 

Q. IIoAv many times have you been examined with respect to the 
particular house in Avhich Captain Macklin lived? Has anybody- 
asked you any questions about that house before you appeared here 
on the witness stand ? — A. Yes, sir. 

Q. What particular points were you questioned on? — A. They 
didn't exactly ask me. I can't exactly remember, but they asked me 
in AVashiniiton about how Avas the officers' line situated, and that was 
all about the houses they asked me about. I can't rightly remember 
whether they asked me anything about his house; I don't think they 
did, though. 

Q. Were you ever examined at this place, before you testified as a 
witness, as to the construction of that house. No. 11 or 12? — A. No, 
sir. 

Q. Did anybody ask you any questions about that at all? — A. 
No. sir. 

Q. Captain Lyon didn't ask you any questions about that ? — A. No, 
sir; I don't think he did. 

Q. You didn't tell Captain L^-on that you Avent to the side of the 
quarters nearest the river to waken Captain Macklin, did you?— A. 
AVhen he examined me before? 

Q. This morning. Did you eA^er tell A. Yes; I Avas telling 

him that, but at the same time I couldn't remember rightly; I told 
Lieutenant Fitch here I couldn't remember at the time Avhen he asked 
me, because that Avas something I ncA'er kept in my mind, because I 
didn't think they were going to ask me about it. 

Q. HoAv (lid you hapj^en to get A'our mind straightened out on that 
particular feature?- — A. Just because I simi)ly remembered I had to 
come to his quarters coming doAvn the sideAvalk. I come to his 
quarters first before going to the road, and then I remembered by 
Avalking around in the back that his kitchen Avas to the east-side cor- 
ner of the building — that is. the stable : there is a stable running 
right back of the kitchen, a snuill stable. 

Q. HoAv is it you didn't happen to remember that, talking to 
Captain Lyon? — A. Oh. Avell. he just caught me coming along the 
Avalk and I didn't have time to straighten myself out or him either, 
and I just told him it Avas on the left; but at the same time 1 told 



162 

him I dicln't think it was right, and I told Lieutenant Fitch I made 
a mistake telHng Captain ^yon it was on the left. 

Q. Did Captain Lyon describe the house for you, with reference 
to the administration building there at Fort Brown? — A. I can't 
readily say if he did or not. 

Q. AVTiat did you tell Captain Lj^on with respect to the side of the 
house you went to that night ? — A. He asked me if I went to Captain 
Macklin's house and I told him yes, and he asked me on which side of 
the building did he live, or did he occupy. I told him at the time, 
next to the river; at the time I was talking about the last building 
next to the river. I wasn't exactly paying any attention to the 
double quarters, of course. 

Q. Did or did not Captain Lyon point out the situation to you, 
'with respect to the adjutant's office right here in this post, and ask 
you to describe the house with reference to that, assuming the condi- 
tions the same at Fort Brown, for your clear information? — A. He 
was fixing to ask me and at the time he stepped across and went over 
to the mess ; he didn't ask me any more. 

Q. Do you understand this particular map, Rogers? — A. Yes, sir. 

Q. I don't want you to be confused about it. This to the left of the 
road is the town of Brownsville, understand, and as you look at the 
map, to the right of the road is the post of P^ort Brown, and marked 
on the post of Fort Brown, under the title "A," is the guardhouse. 
On the opposite end of the parade ground is marked the administra- 
tion building. To the right of the parade ground, as we look at the 
map, is marked the line of officers' quarters. ^A^at particular house 
did you go to that night to waken Captain Macklin? — A. The house 
here, next to the river. 

Q. This house? — A. That house [indicating building marked 11 
and 12]. 

Q. Which side of the house did vou go to? — A. On the other side. 

Q. A\7iiich, 11 or 1-2?— A. On No. 11.' 

Q. "\Miich side did you tell Captain Lyon you went to? — A. I told 
Captain Lyon I went to the left of the building. 

Q. To No. 12? — A. I told him the building; yes, sir, at the time, 
and then I recollected myself after I got up here, after the Lieutenant 
here asked me here : I told him I made a mistake by telling him I 
went to that building. 

Q. My understanding is you told Cai:)tain Lyon you went to No. 
12 side of that building. — A. I didn't ; I said I told him that, but I 
made a mistake when I told him that. 

Q. And you understand, he tried to fix in your mind, through the 
administration building here, referring that to the administration 
building at Fort BroAvn, just to fix in your mind which side of the 
house you did go to. — A. Just as I said, he started to and at the time 
lie was otherwise employed and he stepped across from the adjutant's 
office and went across there and didn't ask me all the questions he 
"was going to ask me. Probably that was what he was going to ask 
me and didn't have time, I guess: he went across about his business 
51 nd I went up the other way. 

Q. As I understand it, later you thought you made a mistake and 
decided you went in 11? — A. Yes, sir. 

/J. Did you find out anything further about this house; did you 



163 • 

think of iuiylliin^ elso except whctlun- you \v('iit to 11 or 12? Did 
you think ahout anythino- el^e — about the stairway, for instance? — 
A. In what case? 

B}' the Judge-Advocatk. I think, may it please the couri. if the 
counsel is attempting to impeacli this witness's testimony, that the 
better method of doing it is to ask him whether he made certain 
statements and introduced evidence to that effect. I have, however, 
no objection to his going to any limits that are i^rojiei- to test this 
man's credibility. 

By AssociATK Coi xsKL. May it |)lease the court, in that case I will 
be glad to be permitted to continue this line of examination. 

Q. I want to make that question plain to you. Rogers. You said 
after you had had this conversation with Captain Lyon that you 
found out you had been mistaken with respect to the particular side 
of the house you w^ent to. Now-, at this time, did j^ou find out any- 
thing about the house you went to; did you fix in your mind anything 
about that house at the same time you fixed the correct side of the 
house you went to? — A. Yes; I can remember, because just as I 
went in the door the table that I spoke about heie l)efore 

Q. No, you don't ujiderstand. At this particular time you made 
up your mind you went in 11 instead of 1*2. did you also fix in your 
mind anything about quarters No. 11. stairway or anything inside 
these quarters; did you think anything about connection with the 
stairAvay? — A. No; I just remembered they was the quarters I come 
to before getting to the corner. I just called to mind wdiich side 
he was living on. and for fear I would tell them wrong — I thought 
I was telling them right, and I explained the best I could by telling 
him the quarters Avas on this end ; that is. the east end. 

Q. You say you helped move some furniture in the house occu- 
pied by Captain Macklin when you were on fatigue one day; do 
you remember in AVhich side of the house you moved that fur- 
niture? — A. Yes, sir 

Q. Which side? — A. Around in back of the house where he was 
living. 

Q. In No. 11 or 12?— A. 11. 

Q. Didn't move any in 12 ? — A. Xo. sir. 

Q. You say in your direct testimony that when you went into the 
quarters that night there was some unpacked furniture in the back 
of the hall.^ — A. There was some unpacked furniture. 

Q. At the back of the hall ?— A. Yes. 

Q. And that's the place where that stairway is that goes up- 
stairs? — A. Why, no: it is just like you come in the door here and 
those are the stairs right there, and the hall leads right through to 
the kitchen over there : why, that is where some of his furniture was ; 
that is, baggage, I don't know whether furniture or not: I know 
baggage, not unpacked: it was over there running in the hall: that is, 
running toward the kitchen. Here were the stairs and you could 
see it right back there next the kitchen door. 

Q. Did you ever state to anybody, Rogers, that you never entered 
Captain Macklin's quarters at all that night? — A. No, sir; nobody 
had never asked me anything about them before. 

Q. You say you were examined by the Senate committee in Wash- 
ington? — A. Yes, sir. 



164 

Q. Did you give this testimony? Page 992. Senate document, 
Affray at Brownsville. 

Q. You knew where Captain Macklin usually slept? — A. Yes, sir. 

Q. Did you find him in the room that night, where he usually slept? — A. No; 
I did not go to his room ; I knocked on the door below his room ; his room was 
right up above where I knocked, he could easily hear. 

Q. Y"ou knew where that room was? — A. Yes. sir. 

Q. So you knocked in that usual place? — A. Yes. sir. 

Q. He answered from the room where he usually slept? — A. Y"es, sir. 

Q. You are quite clear about that? — A. Yes, sir; he answered. 

Now, then, have you ever stated, before you made the statement to 
this court that you w^ent inside the house occupied by CajDtain Mack- 
lin, that you went ever farther than the front door of any house ? — A. 
Before ? 

Q. Have you ever, before this afternoon when you testified before 
this court, made the statement that you went inside any house in 
search of Captain Macklin; any farther than the front door of any 
house?— A. Why, no; I can't remember of ever testifying T didn't, 
because I have always said I went in the door, I opened the door and 
knocked down below: that is what I have always said — that is, to 
anybody that ever asked me about it. 

Q. You didn't tell the Senate committee that, did vou? — A. I think 
I did. 

By the Judge-Advocate. Will the counsel state Avhat particular 
question ? Because to ask " you didn't tell the Senate committee that " 
is rather indefinite, and it ought to be more definite. 

By Associate Counsel. I will clear that up. 

Q. You did not tell the Senate committee that you had gone any 
farther than the front door of Captain Macklin's house, did you? 

By the Judge- Advocate. May it please the court, there is nothing 
here I can find on page 992 that says front door. • It says, '" I knocked 
on the door below his room," and furthermore says, '' his room was 
above where I knocked ; " so if he knew where Captain Macklin was 
sleeping and knew where Captain Macklin actually slept that night, 
it seems to me it is not front door he refers to. 

Q. Rogers, Avhat did you mean in that particular testimony when 
you said, '* I knocked at the door beloAv his room ? " — A. This is simi- 
lar to the same thing. Instead of telling them I knocked on the stair- 
way I said a door. 

Q. So your idea was when you testified before the Senate committee 
that you knocked on that door, that you came inside some set of 
quarters and knocked on a door in the rear of the hall of that set of 
quarters? — A. It w^as not in the rear of the hall; it Avas Avhere he 
w^as supposed to be sleej^ing is where I knocked ; right under where 
he is supposed to be sleeping. 

Q. Wiere was he supposed to be sleeping? — A. Right there. 
Naturally there is a division from the stairway, and Avhere I knocked 
on the stairway he could hear me where his room was supposed to be, 
sitting right there at the stairway; right over the stairway. 

Q. Forget about the stairway for a minute. What had you in 
mind when you gave that testimony before the Senate committee with 
respect to that door? Did you mean the front door of the house or 
did you mean some door inside the house, or what did you mean? — 
A. I didn't mean the front door, because he couldn't hear me from 



1G5 

the front door, I don't think, ^^'('ll, when I told him the door — there 
was a door to the h'ft as you went in the Indl, and I nii<rht have tokl 
them tlnit. and I didn't exactly mean. I knocked on the stairway 
which was nearer to him than the door was — it was nearly the same 
thing. In order to wake him up I had to knock on one of the two of 
them. That is. the wooden part of the bnildin*; I knocked on. I 
might have told him the door, but it was the stairway I knocked on. 

Q. So when you gave that testimony you didn't have in mind a 
door at all? — A. What testimony? 

Q. This testimony right here before the Senate committee in Wash- 
ington. AVhen you gave that testimony about knocking at a door 
just below the room in which Cai)tain Macklin slept you had no door 
in mind at all? — A. I don't know. Pi-obably I might have had, be- 
cause there was a do(jr next to me, and probably because I uiight have 
said that. I went into the hall, and here are the stairs | indicating 
to right] and here are the door | indicating to left |. 

Q. Did you knock on any door? — A. No, sir; I knocked on the 
stairway. 

Q. Did you knock on the front door? — A. No. sir; didn't have to 
knock on the front dooi-. 

Q. Then the front door was not closed and you ojxMied it. as you 
testified in your direct examination? — A. The front door was closed, 
but not locked. 

Q. But both front doors, did you testify in your direct examina- 
tion, were closed and you opened them? That's not so? — A. Yes, 
dr: I opened them. 

Q. Both front doors? — A. Yes, sir. 

Q. Before you knocked? — A. Yes, sir; I had to go inside and 
knock. 

Q. Then after you opened the front door you knocked. Is that 
right ? — A. Yes, sir. 

Q. On that door? — A. I didn't knock on the door, I just said the 
door. I might have been talking too fast when they asked me, and 
instead of saying stairway I said door. In answering I said that. 
The door was next to me on my left and the stairway to the right, and 
they was that close together, and probably by talking too fast I said 
door, but then I meant stairway w-hen I said door. 

Q. You are not talking too fast now? — A. No; I am not talking 
too fast now. 

Q. You are pretty clear in wdiat you are saying? — A. Yes. 

Q. You don't want to be understood that anything you say now 
is clue to the fact you are talking too fast ? — A. I don't think I am 
talking too fast. 

Q. You think you might have talked too fast before the Senate 
committee i' — A. I might of. Of course I has been cross-questioned 
so much I got halfway tied up and I could not tell them the stair- 
way at the time, and I said door. I said the (|uickest thing that 
come to me anywa3^ 

Q. Will you go to the map. Rogers. Start in there at the guard- 
house and describe, pointing it out. what you did before you met 
Major Penrose. — A. You want to know Avhen I started from the 
guardhouse ? 

Q. Yes; and up to and including the time you met Major Pen- 



166 

rose. — A. Here's where I started, right across here — right there — 
and just as I got here and stepped off from the road, Major Penrose 
had gone by and was just about that far away from me. I was in 
the road then and he was right here. [Witness indicates that he 
went in a general direction from the guardhouse towards quarters 
1 and 2, and that Major Penrose had crossed from his quarters 
towards Company C just in front of the witness — just before witness 
reached him.] 

Q. What kind of a night was that, Rogers? — A. "VVliat do 3^ou 
mean, dark or light? 

Q. Dark or light? — A. Yes, sir; it was pretty dark. 

Q. Were there many lights in the post that lit up the place well — 
could you see in good shape? — A. No, sir; there was never so many 
lights. 

Q. It was pretty dark? — A. Yes, sir. 

Q. How close do you believe you were to Major Penrose, so you 
recognized him ? — A. I don't exactly know ; I didn't exactly have 
to see him to recognize him ; but I heard his voice, too, you know ; 
but then I saw him, too, you know — just about 15 yards — 15 or 20. 

Q. Did he see you; say am^hing to you? — A. He didn't see me, 
because I was in rear of him. 

Q. I though you said you were going pretty fast down there. — 
A. No; I didn't say I was going pretty fast. 

Q. Weren't double timing? — A. I said I double timed awhile and 
walked awhile. 

Q. Then you weren't going very fast Avhen you met Major Pen- 
rose? — A. I didn't meet him. 

Q. When you saw^ him? — A. No, sir; when I got to about here 
[indicating point about opposite quarters marked "A"] I stopped 
double timing and walked before going in the street here. 

Q. So just before you saw Major Penrose was when you came down 
to a quick time? — A. Major Penrose was about here, going this 
way, and I was coming this way. 

Q. How was he going ; what rate of speed, quick or double time ? — 
A. Just ordinary stepping — I guess ordinary steps he Avas taking. 

Q. You were on post, you say, that night at 11 o'clock? — A. Yes, 
sir. 

Q. How do you happen to know that? — A. Why, becauioe "taps" 
went when I was on post. 

Q. You don't mean "• call to quarters," you mean " taps.'" do you? — 
A. Yes, sir. 

Q. Did you hear the reports being made to the officer of the day? — 
A. Well, I think T did ; I can't hardly say if I did or not, because I 
wasn't exactly paying any attention to reports. 

Q. Or the officer of the day. either ? — A. No, sir. 

Q. You didn't care about the officer of the day particularly: you 
weren't particularly looking out for him? — A. Oh. yes, I was looking 
out for him, because his general round is about 11 o'clock. The very 
time you have got to look out for them is at 11 o'clock. 

Q. If that is true, did he receive the reports out there at 11 
o'clock? — A. I don't have to know him receiving reports, you know, 
because he comes around at 11 o'clock. 

Q. Did he come around? — A. He didn't come around; he might 
have come around to the sfuard that relieved me. but he didn't come 



167 

around to mo: but he had been around several times to and fro from 
the guardhouse. 

Q. You feel j^ositive you were on post at the time ''taps'" Avent 
and Ilairston. who relieved you. was not on post ^ — A. Xo, sir, I don't 
think he was on post, because when 11 o'clock went — taps went — I 
was standing-. T think — no. I was walking slow in rear of Captain 
Lyon's quarters. 

Q. "N^liat quarters did Captain Lyon live in'? — A. In the quarters — 
I can't readily say — about in the next quarters to ^Lijor Penrose. 
Next set of quarters. T think. 

Q. Will you point out on the map. Rogers, what quarters Captain 
Lyon lived in? — A. He was in one of these buildings, l)ut then T don't 
know which he was in — this one or this one. [Indicating buildings 
marked " 1 " and " 2 " and " 3 " and *' 4."] If he was in this build- 
ing, he lived in this end. The building marked '' 3." 

Q. And if in building 1 and 2? — A. Living here. l)ut T think in 
building Xo. 3 ; I don't know. 

Q. Do you know where Lieutenant drier lived? — A. X^o. sir: can't 
remember. 

Q. Or Lieutenant Lawrason ? — A. Xo, sir. 

Q. Lieutenant Hay ? — A. Xo, sir. 

Q. Lieutenant Chandler? — A. X'o, sir. 

Q. Lieutenant Thompson ? — A. X'o, sir. 

Q. Major Penrose? — A. Yes. sir. 

Q. What quarters? — A. This set, of quarters. [Indicating build- 
ing marked "' A."] 

Q. Was there any light, dim or otlierwise, in the house you testified 
you went in. Rogers? — A. Well, the reason why I say there wasn't 
any light is because I can't remember if there was any light or not 
around the house. 

Q, Do you know what right angles means? — A. Right angles? 

Q. Yes. — A. Xo : I don't exactly know— I don't think T do. 

Q. How did that firing impress you that night. Rogers — how did 
you feel about it ? — A. How do you mean ? 

Q. Well, you said it was something unusual that occurred down 
there. Did you have an unusual feeling, or did you feel about the 
same as you always did? — A. I guess I had an unusual feeling, just 
like everybody else did. I was scared as well as everyl)ody else did. 
I guess. 

Q. With respect to the length of that shooting, Rogers, how long 
was it going on ? You say it was going on when you left the guard- 
house and was going on while you were crossing the parade and con- 
tinued while you were in Captain Macklin's quarters, and was still 
going on when von got back to the guardhouse. Are vou sure about 
all that ?— A. Yes. sir. 

Q. While you were in Captain Macklin's quarters are you sure you 
heard the shooting? — A. Yes, sir: I heard it, 

Q. Were the doors all open then? — A. Yes, sir: the two I went 
through. 

Q. Front doors? — A. Yes. sir. 

Q. Do you happen to remember about any others — any other doors 
being open? — A. Xo, sir: not that I can remember of — that is, I 
wasn't examining the doors arouin^ there. 



168 

Q. You weren't making a close examination of anything, were 
you ? — A. No, sir ; not exactly. 

Redirect examination by the Judge- Advocate : 

Q. AVhen your statement before Colonel Lovering was taken was 
there a stenographer present who took your statement down in short- 
hand, or do you remember? — A. Xo, sir; I can't remember. I don't 
know whether there Avas anybody in there but him. 

Q. You don't remmeber about that ? — A. Xo, sir ; I can't. 

Q. Do you remember whether you read over your statement or not 
to him ? — A. No, sir — if I read it ? 

Q. Yes. — A. No. sir: I didn't. 

Q. You Avere sworn by him, were you ? — A. Yes, sir. 

Q. Did you sign this statement afterwards, or not? — A. Yes, sir; 
I signed it. 

Q. That night did any bullets come flying over your head or not? — 
A. No, sir; I never heard any. 

Q. So you didn't tlimk they were trying to shoot you up then, did 
you? — a! Well, I didn't know much about that. I couldn't exactly 
say what they were trying to do. because I didn't knoAv who was 
doing the shooting and I couldn't tell where it was it was coming 
from at the time of crossing the parade ground. 

Q. Where did it sound to you as if it was? — A. I never did see or 
tell anything about the shooting until I got back to the guardhouse. 
All I could hear was the trumpets going after I started back, and 
the guard was formed outside and then everybody seemed to be point- 
ing down through this little alley below — just in rear of C Company, 
between C and B Company, I think right in between there — and the 
shooting seemed as though it was coming from out that alley. 

Q. How many shots do you suppose j^ou heard ? — A. I don't know ; 
I should say about — that is. up until the time — about 45 or some- 
thing about there. That's making a rough estimation. 

Q. You didn't count them? — A. No, sir; couldn't, and nobody else. 

Examination by the Court: 

Q. Rogers, can you explain to the court, if you were going up 
those steps you describe, after you got up, say halfway up, could you 
see down into the hall ? — A. Yes, sir. 

Q. You are sure of that, are you ? — A. Yes, sir. 

Q. You say, Rogers, that you didn't notice any light in this house 
you went into tocall Captain Macklin? — A. No, sir. 

Q. Did you notice any light in the house next door to it ? — A. No, 
sir. 

Q. Do you know whether there was any light there or not ? — A. No, 
sir; I don't know: I don't think there were any. 

Q. Did you notice any light in the house No. 10, next towards the 
guardhouse? Did you notice any light in that house? — A. No, sir. 
Well, I can't say. " No, sir : I didn't notice any. I wasn't paying 
any attention to nothing else except the errand I was on, and when I 
served that I went back to the guardhouse, but as far as paying 
attention to other things. I didn't do it. 

Q. Rogers, have you ever been under fire, or been in action? — 
A. Why, in no closefire exactly. I have had small attacks, though. 



169 

Q. WluM'oaboiits? — A. That is. T had an attack oiico on a hike with 

Lieutenant Brig<2:s, in the Phili[)j)ines. one ni^jht aljout \'2 o'clock 

Q. That's all right; I don't want you to go into details. 

Recross-examination by the Accused : 

Q. Rogers, were you ever tried by a couit-niartial during your 
period of service? — A. Yes, sir; I was tried. 

Q. Many times or not? — A. AVell. I don't exactly know now. Well, 
yes; I would say many times. 

Q. Do yon ha})pen to remember how many times uj) to June 23, 
1906, from June 13, 1904? — A. If I can remember how many? 

Q. Yes. — A. No, sir; I can't. 

Q. Many as three? — A. Probably might have had that much. 

Q. Four? — A. I don't know. 

Q. Five? — A. I don't know. sir. I just really didn't pay any atten- 
tion to them. 

Q. AVere you tried as many as six times? — A. Do you mean total 
enlistments^ 

Q. No; just that period. — A. Three A-ears' time or a vear? 

Q. June 13, 1904, until June -23, 190G.— A. No, sir: l" don't think I 
was tried six times. I might have been five— I don't know. 

Examination by the Coikt: 

Q. Rogers, you say Captain Macklin answered you when you 
knocked on the side of the staircase? — A. Yes. sir. 

Q. AMiat did he say?— A. He said "All right." 

Q. AVas that the first time yon knocked that he an-wered you? — 
A. No; I rapi^ed about four or five times before I heard anything. 

Q. And then what did you do after he called " All right?" — A. I 
reported back to the guardhouse. 

Q. So that altogether you rapped four of five time-:? — A. Yes, sir; 
abont that number of times. 

Q. He answered once, or did he answei- more than once? — A. Well, 
he answered. 

Q, Did you leave as soon as he answered? — A. Yes, sir. 

Redirect examination by the Judge- Advoc ate : 

Q. Rogers, state exactly what you did when you went in the hail 
there — what you said and what was said by the person who replied to 
your call. Just state exactly what happened. — A. Just as I Avent in 
I rap]x>d on the boarded side of the stairway there — that is, I rapped 
quick — and I guess when he heard it he answered. 

Q. Did you say anything at that time or not? — A. Yes. sir. 

Q. What did you say? Just state exactly what happened and iri 
the order in which it happened. — A. When I rapped and he said 
" Hello," I said. " The sergeant of the guard says report over there 
right away." and he said. "All right." 

Q. Did you leave the quarters at once or not ? — A. Yes. sir; I left ; 
went back to the guardhouse. 

Q. How long had Captain Macklin been in command of your com- 
pany, do you remember? — A. No, sir: I can't remember. 

Q. Are you sure fhat voice you heard was his or not? — A. Well, 
that is something else I don't exactly know. His voice was like after 
a man wakes up out of sleep, you know; he has got a different tone 



170 

to his voice altogether; yow don't know his voice from anybody's then 
when he wakes np. 

Q. But this was in Captain Macklin's quarters that you rapped? — 
A. Yes, sir; it was in his quarters. 

Q. Did any soldier of the company sleep over there as a striker, or 
not ? — A. I don't know ; I don't think so. 

Reexamination by the Coirt: 

Q. Did you rap with 3'our hand or with your gun? — A. With 
both : I first rajiped with my hand and then with the butt of the gun. 

Q. Rogers, when you went in these quarters did you call anybody's 
name? — A. No. sir; I didn't call no name. 

By the Judge- Advocate. May it please the court, I desire to state 
that Ray Burdett, whose presence the court desired here as a witness, 
is expected here at 9 o'clock Monday morning. We have not heard 
yet as to whether he will be here at that time, but the department 
commander to-day wired to ascertain the time he left Washington 
and to ask that if he had not already left that the time of his 
departure be wired to him. I can proceed no further, sir, until he 
arrives. 

(The court then, at 3.40 o'clock p. m.. adjourned to meet at the call 
of the president. 1 

Roger S. Fitch, 
First Lieutenant, First Cavalry, Judge- Advocate. 



Headquarters Department or Texas, 

San Antonio, Tex., April 29, 1907. 
The court met ( at the call of the president) at 2 o'clock p. m. 
Present: All the members of the court and the judge-advocate. 
The accused, his counsels, and the reporter were also present. 

The Judge-Advocate. The prosecution desires to read to the court 
certain telegrams in connection with the summoning of Ray Bur- 
dett. The first is an official copy furnished me as judge-advocate of 
the court, and is as follows: 

Washington, D. C, April 21, 1907. 
Commanding Officer, Depaktment of Texas. 

San Antonio. Tex: 
Subprpiia for Ray Burdett sent to SumDiary Court Officer. Washington Bar- 
racks. April 2G for service. Summary court officer has not informed this office 
whether Burdett located. 

McCain. Adjntant-OeneraL 

After the receipt of this copy yesterday morning I wired direct to 
the Sunnnary Court Officer, Washington Barracks, as follows: 

Fort Sam Houston, April 28, 1901. 
S. C. Officer. 

Washington Barracks, Washington. D. C: 
Has subpoena been served on Ray Burdett? If so. when will he start? 

F^tch. Judge-Advocate. 

No reply has yet been received to this last telegram, but the prose- 
cution has two or three Avitliesses whom it desires to call for brief 
questioning, and thereafter wnll close. It is my understanding that 
the defense has no objection to Ray Burdett being called as a witness, 



171 

even by tlio prosecution, though the court, of course, has undoubtedly 
the right to h't him testify at any time, inasmuch as he has been sum- 
moned at its order: but I have these few witnesses whom I can put on 
now. 

The Presu)i:nt. ^^'h('n he comes tlic court will decide as to liis 
testifying. 

AssociATf: CoiNSEL Fou THE AccisED. May it please the court, in 
respect to that particular question the defense would be very glad to 
have his testimony submitted before the court; of course, if he 
arrives at anv stage of the proceedings we would be glad to have him 
as a witness m any capacity. 

First Lieut. Wait C. Johnson, Twenty-sixth Tnfanti\y. was re- 
called by the prosecution, and, being reminded that he was still under 
oath, further testified as follows: 

Reexamination by the Jt dge-Advoca'it:: 

Q. Mr. Johnson, in your. previous examination before the court you 
testified, on page 11)8 of the record, that you were at Fort Brown, 
Tex., the last time from about the 20th of May to the 5th of July, 
1906, and that you occupied quarters No. 11 and 12 during that 
period? — A. Yes, sir. 

Q. Now. with reference to the front staircase in quarters No. 11, 
was the bottom of the staircase screened from view in any way? If 
so. please state how. — A. Underneath the staircase was a cupboard, 
or closet, bijarded up from the side. 

Q. So that, looking at the staircase in quarters No. 11 from the 
hall Avay opposite the staircase, there was practically a triangular- 
shaped board wall in front of you extending from the floor up to the 
level of the steps. Is that correct? — A. Exactly. 

Q. And how was the staircase arranged in (]uarters No. r2? — A. 
Similarly — the same way. 

Q. This material in this hall was boards? — A. Matched lumber. 

(The judge-advocate announced that he had no further questions, 
and the accused declined to cross-examine the witness.) 

By the Colrt: 
Q. Did this boarding extend above the steps, or did it end with 
the stej^s ? — A. It ended underneath the steps. 
(Excused.) 

Capt. Sami EL P. Lyon, Twenty-fifth Infantry, was recalled by the 
prosecution, and. being reminded that he. was still under oath, further 
testified as follows: 

Reexamination by the Judge- Advoca'iT': : 
Q. Captain Lyon, in your previous examination in this case I 
omitted to ask j^ou whether you recollected having any conversation 
Avith Captain Macklin after the occurrences of August 13-14 rela- 
tive to his whereabouts on that night, or relative to the causes of his 
absence — -will you please state to the court if you recollect any such 
statement at that time? — A. I have talked with Captain Macklin 
several times oji that subject. I think the first time was the next 
day, August 14 — during the day of August 14 — and he told me that 
he had not heard any firing, that he awakened once under the impres- 



172 

sion that he had been called — to the best of my recollection, that he 
got up and looked at his clock and noticed the hour — I forget what 
time he said it then was — but he got the impression that it was the 
orderly trumpeter calling him for reveille, but when he noted the 
hour then he thought that he must have dreamed it, and went to sleep 
again. 

Q. That is all you recollect with reference to any statement of his 
of this nature? — A. I think that is, yes — that is all. 

Q. Now, on your direct examination, page 61 of the record, you said 
that the last time that you saw Captain Macklin, on August 13. 1906, 
was between half past and 10 o'clock in the evening. Will you 
please state the circumstances of your seeing him at that time? — A. 
Mr. Lawrason and I had taken a walk down through the main street 
of the town — I think it was P^lizabeth street — and when we came in, 
on our return. Captain Macklin was on his porch, was sitting in a 
chair on the grass near his porch, and it was then that I saw him; 
it was about tliis time, as near as I could fix it, that I stopped and 
spoke to him and went on down to my quarters. 

Q. And Lieutenant Lawrason remained there? — A. Lieutenant 
Lawrason remained there with Captain Macklin. 

Q. Do you remember if there were any other chairs on the porch 
at that time? — A. I do not recall whether the chairs were on the 
porch at that particular time, or on the grass near the porch. 

Q. How many chairs were there altogether there ; do you know ? — 
A. I could not say. There were usually two or three chairs on the 
porch or near the porch. 

Q. Do you recollect whether there was a table on the porch or 
not? — A. I did not notice at that particidar time the table, but I 
know that there Avas a table habitually on the porch, usually in front 
of quarters No. 12, near the door, used by Captain Macklin as a 
writing table. 

Cross-examination by the Accused: 
Q. Captain, what Avas the position of that table Avith respect to the 
door in (juarters No. 12? — A. The usual place of that table Avas in 
front of the door of quarters No. 12, on the porch. 

Redirect examination by the Ji dge- Adaocate : 

Q. Were there any chairs or tables on the front porch of quarters 
1) and 10? — A. I do not recall any. 

Q. Those quarters Avere unoccupied at that time, Avere they not ? — 
A. No. No. 10 Avas occupied by Lieutenant LaAvrason and No. 9 Avas 
occupied by Lieutenant Hay, Avho Avas absent at Fort Sill. 

Q. And on the porch of quarters Nos. 7 and 8 were there any 
chairs or tables? — A. I recall nothing about those porches. 

Q. Those porches were vacant, Avere they not? — A. I can not say 
positively Avhether they were or not. 

Recross-examination by the Accused: 

Q. Did Lieutenant Chandler occupy quarters No. 7? — A. I think 
he did. I am not positiA^e. 

Q. Do you recall that Lieutenant Thompson occupied quarters 
No. 8? — A. Well, I think he did, but I am not positiA'e as to the 
exact occupancy of those quarters. 

Q. Do you recall about Avhat time, Avith respect to the 13th of 



173 

August. Lieutenant Thompson left Fort Brown? — A. It was either 
the 13th or the 12th or somewhere ah^ng approximately about that 
time — just before. 

Q. Then Lieutenant Chandler had been living at Fort Brown 
between July '28 and August 13, had he? — A. Yes; he had lived there 
for a few days. 

Kedirect examination by the JuoGE-iVDVocATE : 

Q. Lieutenant Chandler had left prior to the night of August 13, 
had he not? — A. Yes. 

Q. How long before; do you recollect? — A, No; I don't know 
exactly. I think those officers ordered to Fort Sill went about the 
1st or the 2d of the month. 

(Excused.) 

Lieut. George C. Lawrason, Twenty-fifth Infantry, was recalled 
by the prosecution, and being reminded that he was still under oath, 
further testified as follows: 

Reexamination by the Judge- Advocate : 

Q. Mr. Lawrason, do you recollect having had any conversation 
with Captain Macklin subsequent to midnight of August 13, 1906, 
relative to his whereabouts on that night? — A. I recollect no par- 
ticular conversation, although it is probable that I have had several 
with him since that time on that subject. 

Q. You have not, however, a sufficiently clear recollection to state 
in regard to any particular conversation what Captain Macklin 
stated to you? — A. No, sir; I have not. I have formed a general 
idea of his whereabouts on that night. 

Q. From A. Probably from these conversations; but I recol- 
lect no particular one, nor his particular statements to me in regard 
to this. 

The Judge-Advocate. May it please the court, it is apparent that 
Mr. Lawrason's recollection of these conversations is rather vague. 
He doubtless had several of them and can not differentiate between 
them. I would like to ask if the defense has any objection to ISIr. 
Lawrason's stating what the general substance was of these various 
conversations, inasmuch as he is unable to fix upon any particular 
one or upon any particular statement. Has the defense any par- 
ticular objection? 

Associate Counsel for the Accused. We have not the slightest 
objection, may it please the court. 

Q. Then. Mr. Lawrason, will you please state to the court the sub- 
stance of those conversations as you recollect them? — A. It seems to 
me that Captain JNIacklin told me that he went to bed some time in 
the neighborhood of 12 o'clock, after making an inspection — after 
check. I believe — and remained asleep until waked up — it seems that 
he said some man came into his room and touched him. 

Q. You do not, hoAvever, recollect his stating anything aliout hav- 
ing been previously awakened and then going ])ack to bed? — A. No; 
I do not recollect his ever saying anything alwut this to me. 

Q. Now, on your direct examination, Mr. Lawrason, I omitted to 
ask you if you saw Captain Macklin on the evening of August 13, 
1906, and I will request j'^ou now to state whether you did see him or 
1643—07 M 12 



174 

not, and, if so, under what circumstances? — A. I did see him on this 
evening. 

Q. Abolit what time was it? — A. About between the hours of 9 
p. m. and 10.35 p. m. I visited him at his quarters during this time 
and Avas with him, I belicA'^e, from about 9 to 10.45 p. m. 

Q. I will ask you whether or not you were alone, or were you in 
company with another officer at that time, do you know? — A. I am 
not positive whether I went there alone or in company with Captain 
Lj'on. If I went there with Captain Lyon, he did not remain very 
long, because I believe that I was alone with Captain Macklin during 
most of this time. 

Q. What were you and he doing at this time? — A. Reading, talk- 
ing, and we had a bottle of beer during this time. 

Q. Just one bottle for both of you, or did each of you have a 
bottle? — A. I recollect that I drank one bottle. I do not recollect 
whether Captain Macklin drank one or not. I believe he drank one 
bottle during this time. 

Q. Was your conversation general, or was it mainly directed 
towards the' events of that day ? — A. I believe it to have been general ; 
I do not recollect discussing any particular subject. 

■ Cross-examination by the Accused: 

Q. Mr. Lawrason, what was the size of that bottle of beer that 
3'ou drank ? — A. It was a pint bottle, sir. 

Q. And that one that Captain Macklin drank? — A. A pint bottle 
also. 

Q. Did he drink any more beer than that? — A. I do not believe 
he did, sir. 

By the Court : 

Q. When you left your quarters during that firing on the night of 
the 13th, did you leave the light in your quarters? — A. I believe I 
left a light in my lower front room, sir — I lit a light in my room and 
lighted myself out of the quarters by this light, and I believe I left 
it in the front room downstairs. 

Q. Was there any light in quarters No. 9 at that time ? — A. I saw 
no light in quarters No. 9, sir. I do not think there was one, although 
I do not know. 

Q. AA^iat were your quarters, what number? — A. No. 10, sir. 

Q. AVliat room did you occupy? — A. The back room upstairs. 

Q. Did you occupy \he front room downstairs for any purpose? — 
A. I used that as a sitting room, sir, and for writing. 

Q. Was it furnished? — A. Yes, sir. 

Eecross-examination by the Accused : 

Q. Mr. Lawrason, with reference to that quarters No. 9, was it 
occupied by anybody after Lieutenant Hay left? — A. Yes, sir; it 
was occupied bj"' a soldier who worked for Lieutenant Hay, and he 
slept there during Lieutenant Haj-'s absence. 

Q. Do you recall having seen that particular soldier that night 
after this shooting had occurred? — A. He called to me after I had 
gotten up. from the adjoining quarters, that the call to arms was 
being sounded. 



175 

Q. AVhat company did he belong to. Mr. Lawrason? — A. He 
belonged to CompanA^ C. 

Redirect examination by the Jidge- Advocate : 
Q, "Were quarters Nos. 7 and 8 vacant at that time or not, do you 
recollect? — A. I believe they Avere vacant. Those quarters had been 
occupied by Lieutenants Chandler and Higgins and Lieutenant 
Thompson of the Twenty-sixth Infantry, but they were all away at 
this time, I believe. 

Q. Was there an}^ furniture on the front porch — any tables or 
chairs on the front porch of quarters 7 or 8? — A. I believe Lieu- 
tenant Chandler had some furniture in crates, or unpacked— I don't 
know which — on the porch of No. 7. 

Q. How about the furniture in your quarters Xo. 10 and the adjoin- 
ing quarters, do you recollect? That is. on the porches? — A. There 
may have been a chair — a rocking chair — on this porch. I do not 
believe there was any other furniture out. 

Recross-examination by the Accised : 

Q. How did Lieutenant Chandler happen to be away, Mr. Law- 
rason. at that time? — A. He was detailed. I believe, as range officer 
on division rifle competition at Fort Sill. Okla. 

Q. "\^Tiat was his position in that battalion of the Twenty-fifth 
Infantry? — A. He Avas battalion adjutant. 

Q. Did he expect to return to the post at Fort Brown? — A. Yes, 
sir; he did. 

Q. And as far as you know he made no preparations towards pack- 
ing his furniture prior to leaving for Fort Reno? — A. Xo, sir; I 
believe he made none at all. 

By the Court: 

Q. In going to your quarters at night, did you ever haA'e any diffi- 
culty in distinguishing the quarters, or did it ever happen that you 
went by, for instance, to another's quarters because they were similar, 
or anything of that kind? — A. I clo not believe I ever made a mis- 
take, sir. The walk leading from about near my company and the 
gate to town came out near my quarters, and in getting to the side- 
walk running along in front of the officers' quarters I Avould just 
turn to the right and my quarters woidd be right there. 

(Excused.) 

The judge-advocate announced that the prosecution here rested. 

The President. Is the defense ready to proceed ? 

Counsel for the Accused. We would like to ask until to-morrow 
morning before commencing our defense, may it please the court. 

The accused, his counsels, the reporter, and judge-advocate then 
withdreAv and the court was closed, and on being opened the president 
announced in their presence as follows: 

If there is no objection, the court stands adjourned to meet to-raorrow morn- 
ing at 9 o'cloclv. 

"\Aliereupon the court adjourned at 3.15 o'clock p. m. 

Roger S. Fitch, 
First Lieutenant^ First Caralnj, Judge- Advocate. 



176 

Headquarters Department or Texas, 

San Antonio, Tex.^ April 30^ 1907. 

The court met, pursuant to adjournment, at 9 o'clock a. m. 

Present: All the members of the court and the judge-adA'ocate. 
The accused, his counsels, and the reporter were also present. 

The accused, at his own request, was duly sworn as a witness and 
testified as follows : 

Direct examination by the Judge- Advocate : 
Q. Please state your name, rank, and station. — A. Edgar A. Mack- 
lin, captain, Twenty-fifth Infantry; station, El Eeno, Okla. 

By the Couxsel for the Accused : 

Q. How long- have you been in the service ? — A. For fifteen years. 

Q. Will you please state in detail what this service has been? — 
A. I was in the Fifth Artillery for six years, four months, and two 
days as private, corporal, sergeant, and color-sergeant. The balance 
of my service has been as a commissioned officer in the Eleventh In- 
fantry and the Twenty-fifth Infantry. I served in the Eleventh In- 
fantry as second and first lieutenant from July 9, 1898, until the 28th 
of September, 1901, when I was promoted to captain, and I trans- 
ferred to and joined the Twentv-fifth Infantrv on the 12th of Decem- 
ber, 1901. 

Q. And since December 12, 1901, you have been what? — A. I have 
been serving in command of Company C, Twenty-fifth Infantry, 
since that date. 

Q. ^Aliere were you on August 13 and 11, 1906?— A. At Fort 
Brown, Tex. 

Q. How long had you been at Fort Brown, Tex., on those dates? — 
A. Since July 28 of that year. 

Q. And how long did vou serve at Fort Brown after the 13th of 
August?— A. Until the 2ith of August— 25th of August. 

Q. Upon what clut}^ were you while you were stationed at Fort 
Brown? — A. I was in command of Company C, Twenty-fifth In- 
fantry. 

Q. On the 13tli and 11th of August were you on any other duty 
other than that of commanding Company C? — A. Yes; I was on 
duty as officer of the day on that date. 

Q. About Avhat time did you enter on this i^articular tour of duty 
as officer of the day? — A. I think it was between half past 10 and 11 
o'clock on the morning of August the 13th. 

Q. On that morning was the guard mounting a formal guard 
mounting? — A. It was. 

Q. AMio mounted the guard? — A. Lieutenant Grier. the acting 
post adjutant at that time. 

Q. Captain Macklin, whom did you relieve as old officer of the day 
that morning? — A. Lieutenant Grier. 

Q. l^^iat orders, if any, did Lieutenant Grier turn over to you as 
old officer of the day ? — A. None. He told me that the usual orders — 
there was no change in the orders, and to carry out the usual orders. 

Q. To whom did you report on that morning as new officer of the 
day? — A. To Major Penrose, the commanding officer. 

Q,. Did vou and Lieutenant Grier both report together? — A. We 
did. 



177 

Q. AVhat orders relative to the performance of your (.lutios as officer 
of the day did Major Penrose, the coniniandin*:: officer, give you^ — A. 
He told ine to carry out the usual instructions, and it was on that 
guard, or the one previous, I am quite positive, that he gave me in- 
structions to inform the sentinel on post No. 3, Avhich was in rear of 
the men's quarters in the daytime, to keep out all small boys who had 
been coming in there about meal times, as our property was all on the 
back porches and had not been entirely uni)acked or put into the 
storerooms. 

Q. What post was this ^— A. Post No. 3— '2, I should say. 

Q. You are sure it was post No. 2? — A. Yes; I am sure it was ])ost 
No. 2, the one in the rear of the men's quarters. 

Q. What other special orders, if any, did the connnanding oilicer 
give 3'0ii at some later time in the afternoon or evening of August the 
13th relative to your duties? — A. About 5.30 in the evening the com- 
manding officer came down towards my quarters and gave me 
instructions to send out into the toAvn three patrols, to notify my own 
company that all passes were revoked or rescinded at 8 o'clock, or 
would be up at 8 o'clock that night. I Avas to send these patrols out 
into the town and bring in all the men who were out. 

Q. Were there any other special orders given you that day, up to 
5.30 p. m., when you received these orders about the patrols — were 
there au}^ other orders given you bj^ the commanding officer? — 
A. None. 

Q. Captain, during the time that a^ou were stationed at Fort Brown 
did you regularly do duty as officer of the day? — A. I did. 

Q'. About how often did you go on as officer of the day? — A. At 
the time Avhen I went on, on August the 13th, was the third day. 
Before that Ave had been going on Avith two nights off, 

Q. Then, about Iioaa' many tours as officer of the day did you do at 
Fort BroAvn up to and including the one of August the 13th ? — A. I 
think it Avas about six. 

Q. Captain, AAhat Avere the orders in force at Fort Brown during 
the time j^ou were stationed there, and prior to August the 14th, other 
than those contained in the authorized manual of guard duty? — 
A. The order Avas that the officer of the day Avould inspect each sen- 
tinel on post at least once during his tour — each sentinel of each relief. 

Q. Was this inspection of each sentinel on post by the officer of the 
day the usual custom under the regimental commander of the 
TAventy-hfth Infantry, Colonel Hoyt, and the commanding officer of 
the First Battalion, Major Penrose? — A. It was — had been ever since 
I joined the regiment. 

Q. Not only at Fort BroAvn, but at Fort Niobrara also? — A. Yes, 
sir. 

• Q. Captain, Avhat orders, if any, Avere in force at Fort BroAvn, 
Tex., up to August 13 and 14, 1906. requiring the officer of the day 
to visit the guard and sentinels between midnight and reveille? — 
A, There Avere no orders other than Avhat the Guard Manual calls for. 

Q. Then, there were no orders in force requiring the officer of the 
day to visit the guard betAveen midnight and rcA-eille? — A. There 
Avere none ; no. 

Q. You said in the previous ansAver that you had received certain 
orders from the connnanding officer, about half past 5 in the after- 



178 

noon of August 13. requiring you to send out certain patrols. Did 
you carry out these instructions? — A. I did. 

Q. Will you please state in what manner you carried out these 
special instructions of the commanding officer ? — A. In the first place, 
I notified my first sergeant of the orders of the commanding officer, 
directed him to send two noncommissioned officers into the town to 
notify all the men of my company to come in — that is, who were 
on pass — that all passes had been revoked to take effect at 8 o'clock 
that night. At about half past 7 I went to the guardhouse, had the 
guard formed, and designated a corporal and two privates of his 
relief to go out with the first patrol. The second patrol went out 
about fifteen minutes later, consisting of one man, Private Ash, of 
Company D, Twenty-fifth Infantry. This man I instructed to go 
to the wharf on the Eio Grande River, which crossed leading to 
Matamoros, told him to stay there until 9 o'clock, to instruct any 
men who were going to or coming from Matamoros to return to the 
post, as their passes had been revoked. At about 8 o'clock I sent out 
another patrol, consisting of a noncommissioned officer and two 
men. About 9 o'clock I sent out another patrol of a noncommis- 
sioned officer and two men. The fifth patrol went out about 9.80, 
consisting of a noncommissioned officer and two men. I sent these 
men into different parts of the town, with orders to notify the men 
to return to the garrison, that the passes had been revoked. "Wlien 
Major Penrose first gave me the orders to send out the patrols, I 
asked hun if he wished me to go out into town; he said he did not 
care particularly : that if I felt that it would be of any benefit, or if 
I thought it necessary, that I could go into the toAvn. So after the 
first three patrols went out, I myself went through the town; covered 
probably fifteen blocks ; went down different streets to see if I could 
find any of the men. or see any of the men, and also to see that the 
jiatrols carried out their duty. 

Q. Did you determine whether or not these patrols did their 
duty? Were you satisfied? — A. I was perfecth' satisfied that the}' 
did. They found some men and told then to return, and finalh' 
found out that all the men were in, with the exception of two or three 
who were on pass, and they could not be found. 

Q. Captain, were there any orders given you by the commanding 
officer directing you to exercise any special vigilance on the night of 
or during your tour of August the 13th-14th? — A. There were none. 

Q. Were there any suggestions or information given to you by the 
commanding officer which might indicate that any special vigilance 
on your part was necessary? — A. There was not. 

Q. Was there anything in his manner which might indicate this ? — 
A. There was not. 

Q. Captain, had there been any occurrences in the vicinity of Fort 
Brown which might indicate that any special vigilance on this par- 
ticular night was necessary on your part? — A. There was not — there 
had not been. 

Q. Why were those passes rescinded and the men ordered to remain 
in the garrison after 8 p. m. on the night of August the 13th? — 
A. The passes were rescinded on account of an alleged attack on a 
Mrs. Evans hj one of our men, which was reported to the command- 
ing officer by Mayor Combe, and Mayor Combe suggested to the com- 
manding officer that he thought it was advisable to keep the men in 



179 

the post, as there might be trouble, that a few of the men going 
around alone might be assaulted or hurt. 

Q. AVell, you say he said there might be trouble? "N^Tiat did he 
mean by that? — A/ Well, the mayor was afraid that the people would 
become indignant and might assault these men. 

Q. WHiat men? — A. Any of the men who were out in single groups 
or alone. 

Q. By groups you mean A. I mean one or two men together — 

two or three men together, rather. 

Q. Allien did you first hear of this alleged assault on Mrs. 
Evans? — A. I think it was about 5.30 that evening — that evening of 
August the 13th. 

Q. Did you receive any further reports or information regarding 
this alleged assault? — A. Later in the evening Corporal Wheeler, 
who was one of the corporals of the guard, asked me why the passes 
had been revoked and I told him, and he said that he lived near this 
Mrs. Evans, and I told him that he ought to try to find out all he 
could about the matter so as to clear up any suspicions on the men. 

Q. Did you have any further conversation with him ? — A. Later 
Corporal Wheeler told me that he had been over home, had seen his 
wife, and had found out what the trouble was. It seems that this 
Mrs. Evans lived in the tenderloin, or in the vicinity of the tender- 
loin district, and he re]Dorted to me that she leaned over the fence 
and some man came down the street, and put his hand on her head 
and said, " Hello, pet," or something of that kind, and passed on. 

The Judge- Advocate. This, as I understand it, was the report made 
by Corporal '\"\lieeler to Captain Macklin at that time? — A. Yes, 

Q. How long had you known this Corporal Wheeler? — A. I had 
known Corporal AA^ieeler since about April 1, 1904. I think — a little 
over two years and three or four months. 

Q. Had you ever had occasion to notice him especially? — A. I 
have; I had. 

Q. Did he or did he not have your confidence? — A. He did have my 
confidence. 

Q. Captain, was the commanding officer — or what opinion, if any, 
did the commanding officer express to you as to the truth of this 
Evans report? — A. He said he did not believe there was a.ny truth 
in it at all. I told him that I did not either. 

Q. What impression upon your mind did this report of Corporal 
AVlieeler, and the expressed opinion of the commanding officer make — 
what impression did you receive? — A. I received the impression that 
there was not any truth in the matter at all, and that it was just an 
exaggerated story. I did not believe that any of our men had done 
it; I had seen them under all circumstances in Nebraska, and never 
heard of an occasion of that kind, of any woman ever being insulted 
by one of the men. 

Q. Did you or did you not anticipate serious difficulty as the out- 
come of this alleged assault ? — A. Xo ; I did not at all. 

Q. Captain Macklin, about how often and at about what times did 
you visit the guard during your tour as officer of the day on August 
13-14? — A. I first went there at guard mounting, then once during 
the afternoon, at retreat, at 7.30. and then shortly after 9 o'clock; 
then immediately after check roll call or •' taps; '■ and the next \asit 



180 

was some time in the morning, about reveille; and then once after 
that, between that and guard mount. 

A Member. I would like to have the stenographer read that ques- 
tion and answer. 

The reporter read the question and answer, and the witness fur- 
ther stated : 

A. I might add to that answer I think I visited the guard once 
in the morning, but I am not quite positive. 

Q. Then, from the time you mounted guard, up to midnight of the 
13th of August, you visited your guard five or six times ? — A. Yes. 

Q. Captain, did jou make the inspection of the sentinels on post 
required by special orders of the post at Fort Brown ?--A. I did. 
All those sentinels were inspected except one. He was Private Ash, 
on post No. 4. I saw him walking his post, but did not take his 
orders. 

Q. Why was it that you did not actually take this man's. Ash, 
orders ? — A. I had inspected Ash a good many times, knew him to be 
an excellent soldier, and very attentive to his duties. I did not think 
it necessary. 

Q. Where was he when you saw him ? — A. He was in the vicinity 
of the commissary storehouse. 

Q. Was that part of his post? — A. It was. He was on his post 
at the time. 

Q. Where were you ? — A. I was on the sidewalk, right near. 
Q. About how far from him? — A. '\'\n:iy, I don't know — about, 
maybe, 20 yards — 15 or 20 yards. I could see him plainly. 

Q. Were you satisfied that this man Ash on post No 4 was per- 
forming his duties properly ? — A. I was entirely, sir. 

Q. Were you confident that he was perfectly familiar with his 
orders? — A. I was. 

Q. Captain Macklin, " taps " at Fort Brown was at the usual 
time? — A. It Avas at 11 o'clock. 

Q. Was it the custom there to carry out the usual orders regard- 
ing the 11 o'clock checkroll? — A. I do not understflnd that. 

Q. Was it the custom there to carry out the usual orders regarding 
the 11 o'clock checkroll? — A. It was. 

Q. AYho received the reports ? — A. The officer of the day. 
Q. Did you receive the reports at " taps " on the 13th of August? — 
A. I did. ^ 

Q. Captain, what was the result of this checkroll call as reported 
to you ? — ^A. All the companies were reported present. 

Q. By present do you mean, did you understand by this report 
made to you that all were present — did you understand that that 
meant that every man was actually in post or in the quarters? — • 
A. No; because I knew some were out on pass — for instance, in my 
own company there w^ere two out on pass that we could not find. All 
were present except those who were out with an authorized pass. 

Q. HoAv was it, Captain, that there Avere these two men of your 
company absent, or out on pass, rather? — A. They had been granted 
a pass on the morning of August 13 by the commanding officer, 
and neither the patrols nor the noncommissioned officers that I sent 
out could find these men. It was presumed that they had gone to 
Matamoros^ — in fact, I am very certain that at least one of them was 
in Matamoros. 



181 

Q, Whore is ^latamoros? — A. Matamoros is directly across the 
river from Brownsville, in Mexico. 

Q. Captain, after receiving these reports at " taps." Avhere did you 
then go? — A. I first went into my own house for a moment, then 
came out. Avent up to the guardhouse, had the guard turn out and 
verified the prisoners afterAvards. Then I left the guardhouse and 
went over betw^een the vacant set of barracks and my own comjoany 
quarters and went in rear of my own quarters. 

Q. Captain, about what time was it w^hen you Avere at the guard- 
house? — A. I think it Avas A^ery close to a quarter after or tAventy 
minutes after 11. 

Q. You say you had your guard turn out and verified the prisoners? 
Did you giA'e any special instructions to anyone there relative to 
yourself? — A. I did. I instructed the trumpeter of the guard to 
call me for rcA^eille. 

Q. ^Vho Avas this trumpeter of the guard, if you remember? — A. I 
really can not recall his name noAV. 

Q. Wh}' did you select the trumpeter of the g-uard as the one to 
aAvaken you?— A. Why, I think — that is, he knew my quarters and 
I think that was the usual custom; he was perfectly familiar Avith 
all of the officers' quarters, delivering messages, etc., and I kneAV that 
he could find my quarters. 

Q. Captain, you say that you left the guardhouse and Avent over 
betAveen the vacant set of quarters on the east end of the line of bar- 
racks and C Company barracks, and in rear of your own company? 
AVliy did you take this particular route ? — A. I Avent over there to see 
if the orders that I had given the first sergeant a fcAV days before had 
been carried out. The men had been in the habit of sitting on the 
back porches there and disturbing the other men by loud talking, and 
I Avent over there on purpose to see if any of them Avere sitting out 
there. 

Q. ^ATiile you were in rear of these quarters did anything out of 
the ordinary occur that you recall? — A. Yes. Allien I got up near 
the west end of my quarters I saAv up in front of the gate what I 
thought Avas a couple struggling. Avhich apj^eared to me to be a man 
and Avoman or tAvo men and tAA'o Avomen. so I unhooked my saber and 
ran up there as fast as I could, and Avhen I got there on the Avalk 
betAveen B and D Companies' quarters I found six or seA^en or eight 
children, and they Avere all huddled together, and a big blaclv dog 
that belonged to B Company w^as there groAvling at them, and they 
were frightened, and Avhat I took to be their struggling I found Avas 
their moving around with each other, because they were all A'ery much 
frightened, and some of the little girls Avere crjdng. I took those 
children and Avent out onto the middle walk with them and halfway 
across the parade ground, and asked the oldest one of them Avhere 
they had been, and they told me they had been at a party over at Mr. 
CoAven's house. Avhich Avas in the vicinitv of the i>"arrison. This Avas 
about 11.35 then— a little after 11.30. 

Q. Well, when you took these children out to about the middle of 
the parade ground on the Avalk Avhat did you do then? — A. I then 
w^ent back and met the sentinel on that post, took his orders, then 
went OA^er to the main gate and stood there for a feAv minutes, proba- 
bly no more than an instant or tAvo ; then I came back and AAent OA^er 
home to my OAvn quarters. 



182 

Q. "VVlio was this sentinel on post No. 2? — A. Private Howard, 
Company D, Twenty-fifth Infantry. 

Q. Was this sentinel on No. 2, Private Howard, the last sentinel to 
be inspected? — A. He was. 

Q. tVlien you went to your quarters what did you do then ? — A. I 
left my saber on the front porch, right against the doorsill, and I 
went into the back room, as I always used it for a sitting room, where 
I had my desk, and I got a bottle of beer out of the ice box and sat 
down and drank that and looked at the headlines of a paper that had 
come in that evening's mail. I sat in there probably for about ten 
minutes, not over that — I do not think that long — then blew out my 
lamp, took my lantern, and went upstairs to bed. 

Q. Captain, j'ou say you left your saber on the porch, leaning 
against the side of the door? Was your belt on the saber? — A. It 
was. 

Q. What was the size of this bottle of beer that you drank? — A. A 
pint bottle. 

Q. Did you drink more than one bottle ? — A. I did not. 

Q. Other than this pint bottle of beer you have just stated that you 
drank, what else had you drank during your tour of guard dutj^? — 
A. I drank another pint of beer a little earlier in the evening with 
Lieutenant Lawrason. That was all I drank during that day after 
marching on guard. 

Q. Then you say you blew out the lamp ? ^Vhere was this lamp ?— 
A. The lamp was on the corner of the desk. 

Q. Downstairs? — A. Downstairs; yes, sir. 

Q. In the front or back room? — A. In the back room. 

Q. Then you took your lantern and went upstairs to bed ? Which 
room did you occupy in your quarters or sleeping apartments, Cap- 
tain? — A. I occupied the back bedroom; that is, the second room 
upstairs. 

Q. The back bedroom ujDstairs? — A. The back bedroom upstairs; 
yes, sir ; in the main part of the house. 

Q. "Wliat preparation did j-ou make^that is, with regard to your 
dress — in going to bed. going to sleep ? — A. I put the lantern down a 
little behind the door so that the light would not shine in my eyes, 
and I think I then took off my blouse — that is the only article of 
clothing that I took off, though — and lay down just as I was. 

Q. How was it, Captain, that you removed only your blouse? — A. 
Wlien I am alone I very rarely undress when I am officer of the day; 
T nearly always sleep with my entire clothing on. 

Q. That is 3^our custom? — A. That is ray custom; yes. 

Q. Captain, which quarters did you occupy at Fort Brown dur- 
ing your stay there? — A. Quarters No. 11. 

Q. Quarters No. 11 ? — A. That is, the east side — well, quarters No. 
11. 

Q. Yes ; the east side of the A. Of the last set of quarters. 

Q. On the west or east end of the officers' line? — A. On the west 
line of the officers' line. 

Q. The last set. or last double set ? — A. The last double set of offi- 
cers' quarters on the west side of the line. 

Q. Captain, if they were occupied, who occupied No. 12? — A. The 
house was vacant ; no one occupied it. 

Q. Had you been in these quarters No. 12 a number of times? — A. 



183 

I had been in there a good iiianv times; T had some of my things put 
in there that were unpacked. 

Q. That were what? — A. Unpacked — I mean packed, I should say. 
I used it as a kind (^f storeroom. 

Q. Were those quarters furnished?— A. They were not. 

Q. Was an}' of the property your personal property that you had 
in No. 12? Was any of it unpacked or uncrated? — A. None of it; 
no. It was all crated or in boxes. 

Q. Captain, were those quarters No. 12 lighted in any way on the 
night of August the 13th ? — A. The}^ were not. 

Q. You say those quarters No. 12 were unfurnished? Were there 
any shades to the windows? — A. There were not; no. 

Q. I ^yish j'ou would please describe the light that you had in 
your quarters when you Avent to sleep — one or more — and tell its 
location? — A. The door was about halfway closed, and I put the 
lantern behind that door so that the light w'ould not shine on the bed, 
for I was sleeping almost opposite the door. 

Q. Did this lantern illuminate or light the lower hall of your 
quarters? — A. I do not think it would have been possible to have 
done so. It was in such a position that I do not think the light 
would have shone downstairs. 

Q. Captain, why did you select this particular second-story back 
room for sleeping purposes? — A. It was the room or side from 
which the prevailing breeze came, and everj'one, I think, used that 
for a bedroom. 

Q. Captain jMacklin, how were your personal quarters No. 11 fur- 
nished? — A. Downstairs in the front room I had a couple of chairs, 
one of which, I think, was a Morris chair; the other was probably a 
quartermaster's chair. I had also in there a couch that was wrapped 
in burlap and had not l^een unpacked. In the back room downstairs 
I had a quartermaster's desk and a couple of Government chairs and 
a table. Upstairs I had nothing at all except a white enameled bed 
that I had unpacked. That was the only article of my own furniture, 
outside of two or three chairs, that I had unpacked. 

Q. A^Tiat kind of desk was this? — A. It was a high-top desk; not 
a roller desk; but just a high-top, common quartermaster's desk. 

Q. Captain, when you returned to your quarters after making 
your last inspection of the sentinels, what was your physical condi- 
tion — -I mean as to being wearied ? — A. I was very much tired out ; 
very tired, indeed. 

Q. About what time was it, to the best of your recollection, when 
you went to l3ed or when you went to sleep ? — A. I think it was about 
ten minutes of 12. 

Q. At about 12 o'clock midnight on the 13th of August did you 
hear any shooting? — A. I did not. 

Q. You have learned, though, that there was shooting? — A. Yes, 
sir. 

Q. Since then?— A. Yes. 

Q. How Avas it that you did not hear the shooting? — A. I was 
asleep, and I did not awaken. 

Q. Captain, when did yo^i first wake up after having gone to 
sleep? — A. I first woke up about five minutes of 1. I thought I 
heard a knock downstairs, and I called out, " All right." I got up 
and looked at the clock, and I said. '• Why. I must have been dream- 



184 

ing.'' The impression was that that call was a call for reveille — 
that is. the knock was the orderly trumpeter calling me for reveille — 
and I lay down again and went to sleep. 

Q. When did you finally fully aAvake, or wliten were you awak- 
ened? — A. I think it was a quarter after 1. I was awakened by a 
noncommissioned officer running into the room, touching me on the 
foot, and he told me that the commanding officer wanted me immedi- 
ately ; that they had been shooting up the post; that the town people 
had been shooting up the post and that the whole garrison was out 
and that Major Penrose was very anxious to find me or to know 
where I was ; that they had been looking for me everywhere. 

Q. Do you know who this noncommissioned officer was? — A. I am 
not quite positive, but I think it was Corporal Burclett. 

Q. After you had been awakened by this noncommissioned officer, 
Captain, what did you do? — A. I ran over to the main gate. Went 
over as fast as I could to the main gate, where these men told me the 
commanding officer was, and then I reported to the commanding offi- 
cer there. 

Q. On your way over to the main gate. Captain, did you meet any 
officer? — A. Yes; I met Captain Lyon. He told he that the major 
Avanted me right away. 

Q. Was he the first officer you met ? — A. He was. 

Q. Captain, what comment, if any, did the commanding officer 
make because you had not appeared during the shooting? — A. He 
first said, "My God, boy, where have you been? I have been so 
worried about you. I thought you had gone out at first shooting 
and might i^erhaps have been killed; so I sent Lj^on and his com- 
pany'' into town to try and find you." He then directed me to take 
command of my company. 

Q. Were those the only comments he made? Did he reprimand 
you in any way for not appearing? — A. Oh, no; there was no repri- 
mand whatever. He asked me where I was. I told him I was asleep. 
He made no reprimanding comments whatever. 

Q. What orders did he give you then? — A. Well, he directed me 
to take command of my company and verify it. 

Q. And you then took command of your company? — A. I did; 
immediately. I relieved Lieutenant Grier. He had been placed in 
temporary command of the company. 

Q. Captain, when were you relieved as officer of the day at the 
expiration of this tour of August 13-14? — A. Well, guard mount- 
ing was about 9.30. .It was about 9.30 the next morning — August 
the 14th. 

Q. Did 3^ou report to Major Penrose as old officer of the dav? — A. 
I did. 

Q. And he relieved you ? — A. He relieved me : yes. 

Q. AAHien he relieved you did he say anything which might indicate 
to you that he was not entirely satisfied with the manner in which 
you had performed your duties during this particular officer of the 
day tour ? — A. He did not, sir. 

Q. Aside from any actual words, was there anything in his man- 
ner which would indicate that he was not perfectly satisfied with your 
performance of your duties? — A. Nothing whatever. He gave me 
the impression that he was perfectly satisfied. 



185 

Q. Captain, as company connnander of course you have a certain 
amount of writin<^ to do. Is that right? — A. I have; yes. 

Q. AVhile you were at Fort Brown, where did you usually do this 
writing? — A. On the front porch of my quarters. I had a table 
almost directly in front of the door of No. 1'2. I had the door open 
and I couki get the breeze right through there from the rear to the 
front of the house. 

Q. What kind of table was this? — A. It was one of those folding 
field tables. 

Q. About how hu-ge? — A. Why, I should think it was about 2 feet 
wide by probably o long. 

Q. And what' height? The ordinary height? — A. The ordinary 
height table ; jes. 

Q. It was not a small, not an especially small table, was i1? — A. 
No ; it was the usual large field table. 

Q. And you say that this table was usually standing where? — A. 
Almost directly in front of the door of No. 12 — it was partly cover- 
ing the doorwav. 

Q. AVhere was this table on the night of August 13-11?— A. It 
was ahnost up against the door, because I had been sitting there in 
the early part of the afternoon writing, and had put it up there and 
put some weights on the papers that I had there. 

Q. Cajitain, do you recollect the construction of your stairwa}^ in 
these quarters that you occupied— No. 11? — A. Yes; it Avas an in- 
closed stairway Avith a rail on it, and from about the fourth or fifth 
step down it was entirely boarded up from the ceiling to the floor. 
The rest of the distance was open. 

Q. You say from about the fourth or fifth step down. Do you 
mean the fourth or fifth step up from the bottom?— A. I mean from 
the top — the fourth or fifth ste}) doAvn from the top. 

Q. Then, the last four or five steps as you go up Avere boarded up, 
Avere they ? — A. Yes ; from the ceiling to the floor. 

Q. HoAv did that stairway run — from the front to the rear or from 
the rear to the front ? — A. It runs from the rear to the front. 

Q. HoAv many doors Avere there at the head of the stairAvay? — A. 
Right at the head of the stairAvay to the right was the door Avhicli 
led into my room — the one I used as a bedroom. Eight straight 
ahead of this little landing that was at the head of the stairAvay Avas 
the door leading into the front bedroom. They were separate doors. 

Q. HoAv did those doors open, out or in? — A. Well, I ncA-er had 
them closed, and to tell the truth I can not tell you — I think it Avas in, 
though. There Avas a screen door on each room, also. 

Q. Were there any connecting doors upstairs — I mean lietAveen 
quarters 11 and 12?- — X. Yes; there Avas a door betAveen the two back 
bedrooms — that is, the back bedroom of 11 and tlie back bedroom 
of 12. 

Q. Did you usually keep this door open or closed? — A. I always 
kept it open. 

Q. Do you knoAv as to the doors leading into the bedrooms in No. 
12 — that is, leading into the bedroom from the stairway, whether 
both or either of those doors were locked? — A. There was one door 
from the back bedroom of No. 12 going downstairs, and I had that 
door locked so that no. one could come in from No. 12 into m}' bed- 
room. 



186 

Q. The door in the back bedroom connecting 11 and 12 — those two 
bedrooms — was open, you say ? — A. Yes, sir. 

Q. What connections or communications were there between quar- 
ters 11 and 12 downstairs? — A. There was none in the main portion 
of the house, but there was in that long galler}^ way that ran in the 
rear of the quarters, that ran back in the back part of the quarters. 

Cross-examination by the Judge- Ada'ocate : 

Q. Captain Macklin, the question of whether or not differences had 
arisen betAveen any of the soldiers of the command and the towns- 
people was touched upon in your direct examination. Had there not 
been some friction? — A. There had been three or four instances; yes, 
sir. 

Q. Now, Major Peijrose informed you of the cause of his issuing 
this order relative to cutting off the passes on the night of August 
the 13th, did he not ?— A. Yes. 

Q. He told 5^ou that the mayor of the city, and the husband of 
this woman who w^as alleged to have been assaulted, had reported the 
alleged circumstance to him? — A. He told me that Mayor Combe 
and a Mr. Evans had come up and reported this alleged assault; yes. 

Q. Did he also tell you that the maj^or of the city had advised him 
to keep his men in the post that night on account of possible trouble 
arising on account of the ill feeling occasioned in the town against 
the soldiers because of this alleged assault ? — A. He said the mayor 
told him he thought it was advisable to keep the men in — in the garri- 
son — that night. 

Q. Do you remember the major's also telling you anything further 
relative to the feeling existing on the part of the townspeople? — A. 
No : I do not recall am- thing else. 

Q. Xow, at any time previous to this during your service, had 
occasion arisen to send patrols in the town to bring the soldiers in 
at 8 o'clock or during the evening? — A, Never before, that I recall. 

Q. You had had one pay dnj there, had you not? — A. We had. 

Q. That i^assed oft' quietly, I believe? — A. Pay day w-as August 
the 11th, one of the most quiet pay days I ever saw. 

Q. There was no occasion then to send any patrols to town? — A. 
None at all. 

Q. At any previous time in j^our service with the Twenty-fifth 
Infantry had you, as officer of the day. received orders to send out 
patrols from your company as a company officer, or from your guard 
as officer of the day, to bring the men in at a certain time in the 
evening for fear of trouble ? — A. I do not recall of any. 

Q. So this was the first time in j^our experience with the Twenty- 
fifth Infantry that j^ou had received orders from your commanding 
officer to make efforts to bring in all men of the garrison within the 
limits of the post before a specified time in the evening? — A. Yes. 

Q. As I recollect, the commanding oflicer told you to use your dis- 
cretion in going uptown yourself on a patrol : that if you felt it was 
necessary or advisable to go, ^''ou could do so. but he left it with you, 
in other words ?• — A. He did ; yes. 

Q. And you did go uptown, and you made a pretty long patrol 
by yourself? — A. I did; yes. 

Q. There were no men with you at this time at all ? — A. Not at all ; 
no. sir. 



187 

Q. ^Yhat made 3'ou believe it necessary for you yourself to make a 
patrol ? — A. I did not believe it necessary, but I went uptown for the 
express purpose of seeing that the patrols carried out their orders 
and, if possible, to send in any men that I might find. Everything 
was absolutely quiet. 

Q. And this was about what time, Captain Macklin? — A. I think 
that I went into town about 8 o'clock. 

Q. And you returned about when? — A. Probably about 8.30. I 
was not gone very long. I walked very fast. 

Q. You kept going on; you w'ere just making this patrol, were 
you not? — A. I do not understand your question. 

Q. I say, you did not stop to look in any house to find if any of 
the soldiers were there? — A. I did; I looked in one place — a place 
fronting on ISIarket square — I went inside — probably two or three 
feet inside of the door — and spoke to a man there and asked him if 
he had seen any soldiers; he said no, that he had seen a patrol go by 
a few minutes before. 

Q. Other than that, you just kept on walking? — A. Yes. I was 
not there a minute. 

Q. Now, with reference to these three or four, or four or five, 
instances you mentioned of friction between individuals of the com- 
mand and individual townspeople, w^ere there any of those instances 
that were still under investigation on August the 13th and in w-hich 
the fault of the respective parties had not been determined in any 
Avay? — A. AVell, in the Tate-Newton affair Major Penrose was going 
to lay that matter before the collector of customs, a Mr. Vann, who 
was at the time absent. That, I think, was the only one that was still 
under investigation, except, in the case of Adair, t intended, as com- 
pany commander, to see the collector of customs about his case and, if 
possible, to recover the penholder that w as taken from him by one of 
the collectors down at the wharf leading to Matamoros. 

Q. Now, you have spoken of the Tate-Newton afi'air. ^Y\\at was 
that, and when did it occur ? • 

Associate Counsel for the Accused. May it please the court, I 
will serve notice on the judge-advocate that if he enters into any de- 
tailed questions of any of these instances that occurred prior to Cap- 
tain Macklin's going on as officer of the day out there, we shall bring 
in evidence to rebut anything that will reflect in any w\ay on any offi- 
cer at Fort Brown or that will intimate that in any instance there 
was a necessity for any special vigilance on the part of any officer 
stationed there. ^Ye feel fully convinced that we are able to establish 
beyond a shadow of a doubt that none of these instances in the slight- 
est would necessitate any special vigilance on the part of any officer. 
We stated in the beginning of this trial, on a question asked by the 
judge-advocate that seemed to indicate he was going into these mat- 
ters, that they were originally in charges preferred against Captain 
Macklin. He did not think it necessary to go into it under some 
questions asked Captain Macklin, which did not intend to relate to 
any of those instances. The judge-advocate is now cross-examining 
him upon these instances, and certainly if the judge-advocate con- 
tinues this cross-examination along these lines, we will enter into 
them, and enter into them at length. And I object to the question on 
the ground of being irrelevant. 



188 

The President. I would like to have the reporter read the question 
and answer. 

The reporter read the question, as follows : 

Q. Now, yon have spoken of the Tate-Newton affair ; what was that and 
when did it occui-? 

The Judge- Advocate. May it please the court, I do not believe that 
in this case, with the charges as they are at present, it is necessary to 
go into the conditions at Fort Brown prior to the 13th of August — 
that is, except to bring in such conditions as may possibly have in- 
fluenced the actions of the officers on that date, or about that date. 
As I stated at the beginning of the trial, I was not going into these 
matters, and I did not; but on the direct examination of this witness 
it left the impression that there had been no instances of difficulty 
between the soldiers and the townspeople, and there were undoubt- 
edly, as the witness has just stated, some instances; but as to whether 
those were sufficient to cause a degree of friction that would have 
necessitated special vigilance on his part, I think inasmuch as they 
have been cut out of the charges it is my duty not to go into them to 
any great extent. But I think to merely touch upon them and ascer- 
tain the dates on which they occurred — those that were right close 
to the 13th of August or those that were still under investigation and 
which had not been determined to be merely slight incidences that 
did not amount to anything — I think it is proper to go into them, 
and I therefore think that it is proper for me to go into this question 
as to what was the Tate-Newton incident and when it occurred. I 
do not want any detailed statement from the witness, but just a brief 
synopsis, and we are not going to introduce any witness to show the 
condition of affairs there. 

Associate Counsel for the Accused. May it please the court, in 
our opinion that is the worst form of examination that could take 
place, a light touching-on incidents without thoroughly going into 
them. That is just exactly what we object to. We do not object to a 
thorough investigation of all these matters ; and if we are permitted to 
bring in evidence which relates to our side of these matters we do not 
object to the prosecution's going into them on cross-examination of 
this witness, nor do we obj'ect to the prosecution's going into them 
through the introduction of witnesses; but we do not wish them 
touched on at all unless they are touched on thoroughly. If the 
prosecution wishes to go into them, and the court considers it material 
to go into them, we are ready to meet that issue, may it please the 
court. We were not ready to' stand any inference that might be left 
with the court by reference to certain questions asked on cross- 
examination, and it is that we object to. 

A Member. We would like to have the reporter read the previous 
question and the answer. 

The reporter read the previous question and answer, as follows: 

Q. Now. with reference to these three or four or five incidences which you 
mentioned of frictions between individuals of the command and individual 
townspeople, were there any of those instances that were still under investiga- 
tion on August the 13th and in which the fault of the respective parties had 
not been determined in any way? — A. Well, in the Tate-Newton affair. Major 
Penrose was going to lay that affair before the collector of customs, a Mr. Vann. 
who was at the time absent; that was, I think, the only one that was still 
under investigation, except in the ease of Adair I intended, as company com- 



189 
» 

niamU'r. to set' tlio collector of customs aliout his case. and. if i)ossible. to 
recover the penholder that was taken from him by one of the collectors down at 
the wharf leadinj? to Matamoros. 

The Judge-Advocate. ISIay it please the court, in order to save 
extended investigation and renlizino- (luit this case lias dnigged on 
for a long time no^v, I will withdraw that question. 

Q. Captain Macklin, you stated that it was your belief at that 
time that this report that Mrs. Evans had been assaulted was not 
founded upon actual facts? Your belief was that she never had 
been assaulted? — A. By a soldier. 

Q. By a soldier? Well, now, whether the report was true or not, 
as long as the genei-al belief in town Avas that it was true, the effect 
would be just the same, wouldn't it? — A. I know very little about 
this thing: I had not been in town, had not had any conversation 
with any of the townspeople with reference to the affair, never knew 
but very little, except just what the commanding officer told me. 

Q. You had served in the South before that time, had you. Cap- 
tain Macklin? — A. I served once three months at Fort McPherson, 
Ga.. and about a month at Tampa. 

Q. Now, during your service in the South, had it been or had it 
not been your experience that the mere statement that a white woman 
was assaulted by a negro was sufficient to inflame the feelings of the 
people? — X. Repeat that again, please. 

(The reporter read the question.) 

A. I know very little about it. 

Q. This paper, the headlines of which you were reading that 
evening, w^as that a Brownsville paper or was that a paper from the 
outside? — A. It was a Houston paper. 

Q. You were not a subscriber to the Brownsville Herald ? — A. No ; 
I never subscribed for it. 

Q. And you did not see any copy of it on the 13tli of August? — 
A. I don't know whether I did or not. It was either that evening or 
the next day that I saw it ; I think it was the next morning. 

Q. Yon think it was not until the morning of the 1-ith? — A. The 
morning of the 14th, I think. 

Q. Now, in view of the orders yon had received from the command- 
ing officer relative to sending out these patrols to bring in various men 
found in the town and to keep in the post the men already there, did 
you feel it necessary to give an}'^ special orders to the sentinel on Xo. 2 
post, or to any of the members of the guard, to exercise special 
vigilance ? — A. No ; I did not. The only orders whatever that No. 2 
had was not to allow any of the men out. 

Q. Was that special order you gave him on the authority of the 
orders you had received from the commanding officer? — A. I think 
the commanding officer directed me to give that order to No. 2. 

Q. Regarding the A. Not to allow any of the men out of the 

garrison. 

Q. No change, however, was made in his beat ? — A. No change was 
made in his regular beat. 

Q. Now, at check roll call you said that you knew that a couple of 
men of your company were still away on a pass, but all were reported 
present because their absence was authorized? — A. Yes. 

Q. Now, knowing that Mayor Combe had reported to Major Pen- 
rose his fears for the safety of individual men that might be found 
1G43— 07 M 1.3 



190 

downtown that night, did you not feel some woriy about the absence 
of these men? — A. No; because the first sergeant told me they had 
gone to JNIatamoros. 

Q. Do you know w'hether in any other companies from which the 
report " all present or accounted for " was received at check roll call 
there were also men absent ? — A. I found out the next day that there 
were a couple out from Company D. I did not know it that night. 

Q. So that except in so far as your own company was concerned 
you had no means of knowing that anj^ other men were out on 
pass? — A. No. 

Q. You spoke of visiting the guard some five or six times during 
your tour of August the 13th and 14th, I believe. Do you mean that 
at each of the times mentioned you visited the guardhouse and all 
the sentinels on post ? — A. By visiting the guard I mean visiting the 
guard pro^Der at the giiarclhouse. 

Q. Your last visit to the guardhouse, I believe, was about 11.15 or 
11.'20, and at that time you gave orders to the trumpeter to call you 
at reveille. Did you give any orders to the sergeant of the guard 
as to what he should do in case an alarm was sounded ? — A. I did not. 
I did not anticipate any alarm. The guard manual covered that. 

Q. Were there any other members of the guard aside from the 
trumpeter who were familiar with your quarters? — A. I do not 
know, except Private Rogers. I expect the other men of my com- 
pany who were on guard Avere also familiar with it. I had different 
details in there moving in my property when it first came. 

Q. Did the sergeant of the guard know where you slept? — A. I do 
not know whether he did or not. 

Q. Did the musician of the guard know that you slept upstairs in 
the second room or did he just know your quarters?— A. I do not 
know whether he knew where I slept or not. 

Q. You just told him to call you for reveille? — A. Yes. 

Q. Now, after you left the guardhouse on this occasion and walked 
over between the vacant barracks and C Company barracks, and 
before you heard this commotion caused by the dog barking at the 
children, did you see Private Howard at all, the sentinel on post 
No. 2 ? — A. I don't know, but I think I did. I am not quite positive 
about that. 

Q. Do you recollect whether you stopped and received orders at 
that time, and that it was after that when you heard the dog and saw 
the children, or not? — A. No; I did not stop am^one; that is, I did 
not talk to anyone from the time after I left the gvuirdhouse until I 
met these children. 

Q. And it was after you had escorted the children part of the way 
across the parade ground that you went back and insp'ected Private 
Howard ? — A, That is the time that I feel certain I took his orders. 

Q. And you think j^ou saw him before, while on the way to those 
children ? — A. I think I saw him under one of the lights as I went 
between the two barracks, and he was on the front part ; I know he 
was not in the back there, because he would have been near these 
children. 

Q. Are you positive. Captain Macklin, that you did not see a 
Brownsville j)aper on the night of August the 13th, before you went 
to bed ? — A. I do not believe I did. 



191 

Q. It is possible, liowever, that you niioht have, is it? — A. It is 
possible that I may have read one, but whatever paper I picked up I 
(lid not read, I just glanced at the head lines. 1 know that it was not 
a Brownsville paper, thouj^h, that I had then. 

Q. So any newsi)aper account of this alleo-ed assault it is your best 
recollection you did not see until the next day? — A. I do not think I 
did until the next morning some time. My impression is that that 
Brownsville })aper was an evening paper — or a morning paper, 
rather — but I do not recollect seeing it until — I very seldom ever got 
it — until this trouble between the — this alleged shooting took place. 

Q. Now, how often did you go on as officer of the day down there 
at Fort Brown prior to August the 13th. Captain Macklin? — A. For 
about a Aveek before that — up to a week before that, why, we were 
going on with two nights off, and then, finally, we got three; the 
commanding officer put Mr. Grier on the roster: there were only 
Captain Lyon, Lieutenant Lawrason, and myself doing officer of the 
day duty until the commanding officer put Lieutenant Grier on the 
roster. 

Q. So that for some time prior to August the 13th you had been go- 
ing on guard with only two or three nights in? — A. Yes. 

Q. And that had in fact begun about the time that Lieutenant Hay 
and Lieutenant Higgins left, had it not? — A. That started — of course 
that is what caused it, four officers left the post to go to the rifle 
competition at P\)rt Sill. 

Q.. They left about August the 1st. did they not? — A. I don't know 
what date they left ; it was very soon after we got there. 

Q. Now, did you on all these occasions, so far as your recollection 
serves you, sleep Avith your clothes on, even though you had only two 
or three nights in — that is, when joi\ were on cluty as officer of the 
day? — A. Yes; I am certain that at BroAvnsville on every tour that I 
did there I had my clothes on. 

Q. Now. with reference to quarters 11 and 1*2. did you intend to use 
both sides of this double set of quarters — that is. both quarters, No, 
11 and quarters No. I'i, as soon as Mrs. Macklin arrived or after she 
arrived ? — A. I never contemplated using it. because 12 was in a hor- 
rible condition and the bath tub was in the dining room. 

Q. You expected to continue to use only quarters No. 11, even after 
her arrival, or did you intend to use the other half of the house, viz, 
No. 12, for storage puri:)Oses, or to occujjy it in any Avay? — A. I did 
not hear all of that. 

(The reporter read the (juestion.) 

A. I did not expect to use any part of 12 except the upstairs back 
bedroom, because that gave a good breeze into the bedroom that I 
Avas using. 

Q. Was that door which led from the back bedroom of quarters 
No. 12 to the landing at the head of the stairs fastened securely or 
locked on the night of August the 13th? — A. It was. I do not think 
it was ever unlocked from the time I first locked it. 

Q. The only light in either quarters 11 or 12 when you went to 
bed on the night of August the 13th was the light given by your lan- 
tern, was it ? — A. That was all ; yes. 

Q. And that was placed behind a half-closed door. I think vou 
stated?— A. Yes. 



192 

Q. In such a way as not to shine on your bed? — A. Yes. 

Q. Well, now, was this the door that opened from the back bed- 
room onto the landing at the head of the stairs? — A. It was the door 
that led from my bedroom downstairs in my OAvn house. 

Q. It was the main entrance to the back bedroom from the head 
of the front stairs, was it not? — A. Yes. 

Q. Did that door swing outward from the room or into the 
room? — A. It swung into the room. 

Q. So your lantern was inside of the bedroom? — A. My lantern 
was inside of the bedroom, between the screen door and the door of 
the room. The door was ])robably three-quarters closed. 

Q. So the light would shine ou.t to a certain extent upon the head 
of the stairs, then, the landing? — X. Yes; naturally; yes. 

Q. But would not shine directly downstairs or in the hallway? — ■ 
A. I don't think it was strong enough for that; I do not think it 
would have been possible to have seen it from downstairs. 

Q. Was the door of the front bedroom closed on this night, or was 
it open? — A. I don't know whether it was open or closed. 

Q. Well, whether it was open or closed, could this light from the 
lantern have been seen outdoors or not? — A. No; not from the front, 
because there was nothing there but a dormer window in that front 
bedroom, and the* trees in front were very heavy ; I don't think it 
w^ould have been possible to have seen a light from the outside. 

Q. It would not have been visible, then, to a person standing on 
the sidewalk or nearer to the house than that? — A. I don't think so. 
I think about the only way you could have seen any light in that 
room from the outside would have been from the side of the house — 
that is, the side between the 

Q. The east side? — A. Yes; between 10 and 11. If a person stood 
nearly opposite my window he could possibly have seen a light in my 
room. 

Q. He would have to stand nearly opposite your bedroom to see 
that light? — A. I think so; yes. 

Q. Did you turn the lantern down at all, or was it burning natu- 
rally? — A. I think it was burning just naturally — ^the natural height, 
the regular height. 

Q. Were there no blinds in quarters No. 12 in front of the windows, 
or any other means of shutting out light? — A. No; the whole house 
was open, the windows were all open, to the best of my recollection — 
yes, I know they were all open. I had screens on the fi'ont of them, 
but 

Q. There were no blinds? — A. If there were blinds they Avere not 
closed at all ; they were all open. 

Q. Now, on the veranda on the night of August the 13th, did you 
leave two or three chairs, or were there two or three chairs? — A. Yes; 
I think there were four chairs out there. I generally had four or five 
chairs out on the porch, because all the officers would come down there 
in the evening, and we would sit out on the grass. 

Q. But the chairs — when you went to bed j'Ou usually placed them 
on the porch, did you not? — A. Yes; on account of the dampness. 

Q. And that was done on the night of August the 13th? — A.. I 
think so ; yes. 

Q. Was this folding table of which you spoke and which was on 



193 

the porch of quarters 11 and 12, was that one of these little gold medal 
foldin<r camp tables? — A. Yes, sir. 

Q. Tn which the top folds up, as well as the legs? — A. Yes; that 
was the kind, only it was unusually large. 

Q. AVas there any other furniture on the veranda other than this 
table and the chairs, to the best of your recollection, on the night of 
August the i:)th ? — A. To the best of my recollection there was a crate 
or two on No. 1"2 side — a crate of chairs, or something of that kind. 

Q. Now, this folding table that w^as on the veranda — when you left 
it on the night of August the 13th, or the afternoon of August the 
13th, was not so placed as to absolutely prevent the opening of the 
door of either quarters No. 11 or quarters No, 12, was it? — A. Yes; 
it was in such a position that you could not have gone into 12 without 
moving the table. 

Q. That was what time in the afternoon or evening, if you noticed 
it? — A. Well, I was writing there in the morning, and also wrote in 
the afternoon, probably — in fact. I think I was writing Avhen Major 
Penrose came down at 5.30. That Avould be the last time that I 
wrote there, because after that I was busy with the company and took 
charge. 

Q. Was your striker over at your house in the evening? — A. He 
came over there, I think, about ('• o"clock, and brought my supper over 
just before retreat, but how long he stayed I do not recollect. 

Q. You do not know whether after dark this table Avas removed by 
the striker or not, do you? — A. He never touched it. I gave him 
orders never to touch that table or anything on it. 

Q. And it was in the same position the next morning when you got 
up? — A. It was. 

Q. Now, w^ith reference to the staircase in quarters No. 11, there 
was a closet under the stairs, was there not? — A. Yes; quite a good- 
sized closet. 

Q. And this board, as I understand it, ran in such a way as to 
inclose the portion of the staircase that was exposed to view from 
downstairs. Did that practically hide the entire staircase from the 
view of a person coming from the front of the house — that is, a per- 
son standing near the front door would see this covered arrangement 
with the pair of banisters — or rather one banister — above, and not 
see the actual steps themselves? — A. Read that question, please. I 
do not understand it. 

(The reporter read the question.) 

A. Yes, sir; a person standing at or coming in the front door 
could not see the stairs themselves. He could see where the stairway 
Avas. of course, but I mean he could not see the actual steps : nor could 
he, I believe, see aiivbodv go up the stairs from the front part of the 
hall. ^ . . 

Q. You habitually kept the doors and Avindows open during the 
summer — A. Yes. My house Avas never closed, except one door that 
led from the back part of the house to this long alleyAvay back there. 
That I closed at night. 

Q. Did a striker or a servant or anyone except yourself sleep at 
either quarters 11 or 12? — A. No; I slept there all alone. 

Q. NoAv, were not your quarters so situated Avith reference to the 
rest of the officers' line, the administration building and the roads 



194 

and the lights in front of them, that they coulrl be readily found 
even on a dark night? — A. Well, it was the last double house on the 
line. A person might look around and see and be able to tell in 
that way. Going diagonally across the parade from company quar- 
ters, I always had to look myself to see which house was wliich. 

Q. You stated that about ten minutes of 12 you believed you went 
to bed, and that at about five minutes of 1 you heard some one knock, 
and you sat up, looked at the clock, etc. Now, were you certain at 
the time that some one was knocking, or that some one knocked, or 
not? — A. I was not certain. \'Vlien I got up — ^I was conscious of the 
hour, because I looked at the clock — and when I got up out of bed 
I walked from around the foot of the bed to a small table where I 
kept my alarm clock and looked at the clock and saw the time, and 
then I felt certain I had been dreaming, that I was mistaken in 
hearing the knock — there was no word said, or anything, there was 
just — what I heard was this knock on the front door, or what I 
thought to be the front door. 

Q. But after seeing the clock you were certain you had made a mis- 
take as to this knock? — A. I felt certain then I had been dreaming. 
I naturally thought when I heard the knock that it was the orderly 
come to awaken me for reveille. 

Q. You had no suspicion that it was anything else? — A. Not in 
the least, because I lay right down again. 

Q. Now, you stated that about 1.15 that morning, the morning of 
the 14th, you were awakened by a noncommissioned officer touching 
your foot. Did you ever make inquiry of the commanding officer to 
ascertain the identity of this noncommissioned officer? — A. I can 
not say that I did. 1 think it was Corporal Burdett. 

Q. But you are not certain about that? — A. No; I am not positive 
about that. 

Q. You never asked him if he was the man? — A. I do not recall 
that I ever talked to him about it at all. It is possible I did, but I 
do not recollect it. 

Q. Now, there was a question asked by counsel as to how it was 
you did not hear the shooting. I do not recollect what your answer 
was, but will you please explain to the court here, to the best of your 
ability, why it was that you did not hear this shooting? — A. Yes. 
Because I was asleep: I was very sound asleep. That is the reason, 
I think, I did not hear. 

Q. You are a heavy sleeper, are you? — A. A very heavy sleeper. 

Q. And was your hearing normal at that time ? — A. No : it has not 
been normal for quite a few years. 

Q. You were examined for promotion about two years ago, weren't 
you? — A. Yes; in September, 1904. 

Q. Was an}' defect in your hearing discovered at that time? — A. 
No ; I passed the examination all right. 

Q. Have you taken out anv life insurance in the last year or two? — 
A. In 1901 was the last I took out. 

Q. AVas your hearing tested during those examinations ? — A. No. 

Q. Now, you were seriously wounded, were you not, in December 
of last year ? — A. Yes. 

Q. And a couple of pistol balls passed through your face, or one 
pistol ball passed through your face and one through your side, did 



195 

they not? — A. AVell, llie}^ didn't pass through; they were cut out. 
One entered my head and the other entered my side. 

Q. Did this Avound that entered your head seem to have any effect 
upon your hearing'^ — A. It seems to have had. My hearing is get- 
ting worse every day. 

Q. Well, is it not a fact that it was subsequent to the receiving of 
these wounds that your hearing began to bother you to any great 
degree? — xV. Oh, yes; it has since then. 

Q. AVell, prior to the time that you were shot, in December of last 
year, had you ever had any very great trouble with your hearing? — 
A. No; I never had any difficulty with it. 

Q. You could hear ordinary conversation? — A. Oh, yes; yes, in- 
deed. 

Q. So that i)rior to the time you were shot your hearing might be 
considered as normal or approximately so? — ^A. Approximately nor- 
mal; yes. 

Q. So, it w^as not due to your inability to hear sounds that were 
readily apparent to people of absolutely normal hearing that you 
ascribe your failure to wake up that night, in any degree? — A. No. 
I ascribe my failure to wake up as being due to sleep; I was very 
soundly asleep. 

Q. You never gave any special orders to the trumpeter of the 
guard to come up to your bedroom and knock because of your inabil- 
ity to hear if he knocked downstairs ? — A. No. 

Q. You merely told him to call you? — A. I told him to call me for 
reveille, right after the first call ; that is the way I told him. 

Q. The trumpeter of the guard who awakened you ordinarily when 
you were the officer of the day used to knock at the front door, didn't 
he, when you were upstairs, or did he go upstairs to your bedroom 
and call you? — A. I recall one or two instances — one instance. I 
think— Avhere the trumpeter came upstairs, and in addition to in- 
structing the trumpeter of the guard to call me I used an alarm; 
but ordinarily I am a very early riser, and I am nearly always up 
when they come. 

Q. Weil, ordinarily, when you are taking siestas in the after- 
noon, or. rather, when you were taking siestas in the afternoon at 
Fort Brown, could you be awakened by orderlies or messengers rap- 
ping downstairs? — A. I do not recall that we ever had any orders 
delivered in the afternoon there. We had a rule in the regiment that 
no orders were to be delivered between 1 o'clock and 5 o'clock, so I 
do not recall anA'one's ever coming there in the afternoon. In fact, 
I very seldom ever slept in the afternoon there — it w^as too hot. 

Q. Now, vou stated that vou were verv tired that night, I believe? — 
A. Yes. 

Q. Was this due entirely to your Avork that day, or did the fact 
that you had not had Aery much sleep the night before haA'e anything 
to do with it? — A. That Avas one reason. I Avent OA^er to ^Matamoros 
the night before Avith Lieutenant LaAvrason and listened to the con- 
cert, and Ave returned quite late: there Avere a jiarty of tourists 
there from the North, and Judge Parks invited us to come back in 
a special car they had out, so we did not get back until quite late — 
in fact, I think it was 2 o'clock when Ave arrived home. I had very 
little sleep ; I had a good deal of Avork that day, and the guard duty 
Avas A^erv severe — vou have to coA-er a good deal of ground. 



196 

Q. Has it been your personal experience. Captain Macklin, that 
beer has a tendency to make you sleep more soundly or not, even 
though you take only a glass or two? — A. Xo; that does not have 
any effect on me at all. I can lie down anyAvhere — I trained myself 
to that in my early service — I can lie down anywhere and sleep 
soundly, without anything. 

Q. Those two pints of beer, were they the only drinks of anything 
of an intoxicating nature that you had during this tour of duty at 
all? — A. The only thing during that tour of guard duty. 

By the Court: 

Q. Captain, when the officer of the day has performed his duties on 
ordinary tour and goes to bed after performing all his duties and 
without anything unusual going on, he generally goes to bed in a 
satisfied frame of mind, expecting that the next thing he will appre- 
hend is reveille — that is, the next thing in the way of duty — that is, 
in the ordinary course of officer of the day's tour. Now, I would 
like to ask you, when you went to bed that night, whether you were 
in that frame of mind or whether the events of these patrols and 
the events that had taken place recently at Fort Brown had led you 
to think that you had need to exercise any more than the usual vigi- 
lance that night? — A. I was perfectly satisfied, sir. Everything was 
imusually quiet — not any more than usual — but in the early part of 
the evening, passing by any company's quarters, the men all seemed to 
be having a good time, laughing and joking among themselves, a 
good many of them playing pool, and everything seemed to be per- 
fectly quiet and satisfactory. I was perfectly satisfied. 

Q. With reference to your going back after you left these children, 
will you please state what caused you to return to the gate? — A. I 
did not hear the last part of that. 

(The reporter read the question.) 

A. I do not know, sir. I simply walked over there ; I was very 
near there when I saw the sentry; I just simply walked to the gate 
and looked out. It is possible I went there to see if there was anyone 
I knew around there. 

Q. As I understand, when you went away with the children you 
were going towards j^our quarters — in the direction of your quar- 
ters? — A. I was on that main walk. I took them out about halfway, 
as near as I can judge. 

Q. Yes; going with the children towards your quarters? — A. Yes, 
sir. 

Q. Well, Avhat I want to get at, what caused you to turn around 
and go back to the gate? — A. Oh. It Avas to see the sentr}' — to get 
his orders; I had not finished with him. 

Q. That' was what you had in mind? — A. Yes, sir. 

Q. Now, I would like to ask you about your hearing at that time; 
the examination that has already been conducted does not exactly 
satisfy — at least I did not exactly gather from it whether on that 
night you regarded vour hearing as normal or not — on that night 
of August the 13th, at that time ?— A. Well. I can not say that I had 
any di'fticulty in hearing at that time. It Avas a little bad ; it Avas not 
quite normal, but I do not think it interfered Avit'h my hearing at all. 

Q. You say it Avas a little bad ? — A. Yes, sir. 

Q. Was it in both ears, or one ear ? — A. In the right ear, sir. 



197 

Q. That is. the right car was not as <2()()(I a> tlic \oit ( — A. Not 
quite as good ; no. sir. 

Q. Captain. I woiikl like to ask you if. in tlic porfornianco of your 
guard duty on that day — the 13th — aside from the ])atrols sent out, 
and in the performance of your routine duties, did it ditfer in an^^ 
\vay from any ordinai'X' tour of guard (hity at Fort Hrown ? — A. No, 
sir. 

Q. In your method and in 'the details of what you did in routine 
duty? — A. Xo, sir; it did not differ in any way. 

Q. I understood you to say that you verified the j)risoners after 
" taps ? '■ — A. Yes, sir. 

Q. Did you always do that? — A. I always do that ; yes. sir. 

Q. HoAv did you verify those [)ris()ners — turn them out? — A. Oh, 
no — oh. no. I walked inside their cells, or inside of their prison 
roou). 

Q. Caj^tain ^lacklin. will you please state any effect that the report 
that Corporal Wheeler made to yon had on your mind? — A. AMiy, I 
looked upon it as a trivial incident, did not believe any of our men 
had anything whatever to do with it, and, in fact, I did not think 
anything abont it very much. I told him to lay the matter before 
the conunanding officer, and tell him. 

Q. There had been a practice march the morning of the 13th? — 
A. Yes. 

Q. AVere you on that practice march? — A. No: I was not. 

Q. I would like to ask the witness abont the doors upstairs in Xo. 
12. 'Did I understand you to sa}^ that the door at the head of the 
stairs in Xo. 12, that led into the back room of these quarters, was 
closed or locked? — A. It Avas; yes, sir. I might add there, that 
there was no connection between the front and back room of Xo. 12, 
and there was only one door to the back room, and that was the 
door that was locked, that led downstairs. 

Q. AVell. wasn't there a door between the back room of Xo. 12 
and the back room of Xo. 11? — -A. There was; yes. sir. That was 
open. 

Recross-examination by the Judge- Advocate : 
Q. You knew, however. Captain ]Macklin, that according to Mayor 
Combe's report to the commanding officer, that the general belief in 
Brownsville was that an attempt to assault a white Avoman had been 
made by a negro soldier, did you not? — A. Yes: I knew that. 

Q. You knew that was the general belief downtown? — A. From 
Avhat the mayor told Major Penrose. I had no conversation with 
the nuiyor. and the only thing I knew about it was what the Major 
told me. 
(Excused.) 

Lieut. George C. Lawrason. Twenty-fifth Infantry, was recalled 
by the defense, and being reminded that he was still under oath, 
further testified as follows: 

Reexamination by the Judge- Advocate: 
Q. Please state you full name, rank, and station. — A. George C. 
Lawrason, second lieutenant. Twenty-fifth Infantry. 
Q. And vour station. — A. P'ort Reno, Okla. 



198 

Q. Yoii have already identified tlie accused in tliis case? — A. Yes, 
sir. 

By the Accused : 

Q. Mr. Lawrason, liow long have you been in the military serv- 
ice?— A. A little over nine j^ears. counting cadet service. 

Q. Will you please state to the court your services. That is, in 
what different capacities? — A. Two years and four months at the 
Naval Acadeni}'. about four years at the Military Academy, and 
about two years and ten months in the Twenty-fifth Infantry as 
second lieutenant. 

Q. Your entire commissioned service has been as second lieutenant 
in the Twenty-fifth Infantry ; is that right? — A. Yes, sir. 

Q. Where were you on August the 13th and 14th, 1906, Mr. Law- 
rason ? — A. I was stationed at Fort Brown, Tex. 

Q. How long had you been there up to the 13th of August? — 
A. Something over two weeks — ^I do not know the exact number of 
days. 

Q. And how long did you remain there after the 13th of Aug- 
ust? — A. I believe I remained there about ten days, sir; I am not 
sure ; we left there the latter part of August. 

Q. Mr. Lawrason, do you recall the weather conditions that ex- 
isted at Fort Brown on the night of August the 13th and 14th, 
1906 ? — A. Yes, sir ; it was a dark, starlight night ; there was no moon. 

Q. Was it easv to distinguish objects without the aid of artificial 
light? — A. No, sir; I believe it was difficult. 

Q. ^Vllat duty were you on during the time you were at Fort 
Brown? — A, I was commanding Company B, Twenty-fifth Infan- 
try. 

Q. Did you regularly perform the duty of officer of the day at 
Fort Brown according to the roster? — A. Yes, sir; I did. 

Q. About how often did you go on as officer of the day ? — A. I went 
on about every third day, I believe, at first — I had about two nights 
in. 

Q. About how many tours did you do while you were stationed at 
Fort Brown, do vou remember? — A. I believe I 

Q. That is, up to the 13th of August ?— A. Up to the 13th ? Four 
or five, I believe, sir — about four, I should say. 

Q. Mr. Lawrason, up to the 14th of August, what were the instruc- 
tions governing the officer of the day in the performance of his 
duties ? 

The Judge- Advocate. Will the counsel make that question a little 
more definite as to what orders he himself received when he went on 
these various times as officer of the day? 

Q. Mr. Lawrason, what were the post's general and special orders 
and instructions governing the officer of the day in the performance 
of his duties up to the 14th of August, 1906 ? 

The Judge- Advocate. May it please the court, the prosecution will 
have to object to that question in its present form. The witness has 
testified that he went on four or five times — probably four times — 
during the period he was there, prior to August the 14th, and his tes- 
timony is first-hand as to what general and special orders were in 
force during these tours: but he has no means of knowing what 



199 

special orders nii^ht have been given by the connnanding officer to the 
other officers wlien tliey were on as officer of tlie day. 

Counsel for the Accused. I will amend the question. 

Q. ^Ir. Lawrason. what Avere the general and special orders /gov- 
erning the duties of officer of the day, as turned over to you, given to 
you. during the four or five tours of guard duty that you performed 
at Fort Brown u}) to August the 14th ?^A. As I recollect them, sir, 
they were to insi)oct each relief of the guard on post, and there was a 
special order for the sentinel who Avalked in the vicinity of the en- 
listed men's barracks to keep the Mexican l)oys and stragglers from 
hanging around the porches and stealing. 

Q. Other than those special instructions covering inspection of 
sentinels, and these special orders to the man on Xo. 2 post, were 
there any other, or did you receive at any time as officer of the day 
any other special instructions or any other orders except those you 
have mentioned and the orders contained in the Manual of Guard 
Duty? — A. I believe not. sir. 

Q. Did you ever receive any instructions or orders requiring j^ou 
as officer of the day to visit the guard or sentinels between midnight 
and reveille? — A. Xo. sir; I did not. 

Q. '\^liile you were at Fort Brown was it your custom to visit the 
guard and sentinels, or either, between midnight and reveille? — 
A. Xo, sir. 

Q. ]\rr. Lawrason, from your personal experience, how would you 
describe the duties at Fort Brown? — A. I thought it was hard, sir. 
After the officers left for the division rifle competition there were at 
first only three officers on the officer of the day's roster, Mdiich put us 
on rather frequently, and it was quite a long trip around inspecting 
the sentinels, and I thought the duty was right hard. 

Q. Well, what I mean by that question is, '\A^iat were the general 
duties of the officers of the garrison? — A. I do not understand the 
question, sir. 

Q. I ask you from your personal experience while at Fort Brown 
how you would describe the duties there — that is, the general duties 
that devolved u]ion the officers? — A. As arduous. 

Q. From your personal experience, how would you describe the 
special duty of the officer of the day at Fort Brown ; was it easy or 
otherwise? — A. I always found it fatiguing, sir. 

Q. "Was it especially fatiguing at this post? — A. I think so, sir — 
more so than any post I had been at. 

Q. Why was that ? — A. On account of the frequency with which 
it was performed and the heat : the sentinel posts were spread out a 
good deal — that is, one of them, Xo. 4, was a long way from the offi- 
cers' quarters; his post extended around the quartermaster's buildings, 
and wood pile, etc., and you had to make quite a long trip to get all the 
sentinels. 

Q. Mr. Lawrason, after you had completed the third round of sen- 
tinels during any one of your tours as officer of the day, what was 
your physical condition? — A. I was prett}' tired, sir. 

Q. Mr. LaAvrason, what was your custom when officer of the day 
as to going to bed — that is, was there any special time before whicli 
you did not go to bed ? — A, I usually retired right after taking check. 
11 o'clock check; I did not inspect each relief on post before this, 



200 

and the only time since I have been a commissioned officer before the 
recent order requiring that an inspection be made after 12 o'clock 
that I ever made one was that when I had failed to inspect some re- 
lief on post and it made it necessary for me to remain up after mid- 
night or to get up before reveille to go to this relief. 

Q. Did you undress, as a rule, when you went to bed? — A. Yes, sir; 
I always did. 

Q. Mr. Lawrason, as commanding officer of Company B did you 
get any orders from the commanding officer during the afternoon or 
evening of August the 13th regarding your company ?^A. I was 
instructed through the adjutant, I believe, that all passes would 
expire at 8 o'clock that evening, and to have my comj^any notified to 
this effect and let them know that no men would be allowed out after 
8 o'clock. 

Q. Or after retreat? — A. After retreat. All passes were to expire 
at 8. 

Q. Mr. Lawrason, up to midnight on the 13th of August did you 
know of anything, had you heard of anything, which would lead 
you to believe that any special vigilance on your part as company 
commander was necessary? — A. No, sir; I had not. 

Q. Had you heard of the alleged assault on Mrs. Evans ? — A. Yes, 
sir. 

Q. Did you anticipate any trouble occurring out of this alleged 
assault? — A. No, sir; I anticipated no trouble. 

Q. Mr. Lawrason, when did you last see Captain Macklin on the 
night of August the 13th, 1900? — A. About call to quarters; which I 
believe was at 10.45. 

Q. Where was he then? — A. He was on the porch of his quarters, 
preparing to go out and inspect sentinels. 

Q. How long had you been with Captain Macklin at his quarters 
or on the porch at his quarters? — A. I had been with him since, I 
think, about 9 o'clock that e\^ening. 

Q, '\Aliat were you doing? — A. I Avas sitting in his back room most 
of this time. We each drank a bottle of beer and I was looking over 
his papers, magazines, etc. 

Q. W^as there any conversation ? — A. Yes, sir. I can not remember 
any particular conversation; we discussed general topics. 

Q. Nothing unusual ? — A. No, sir ; nothing unusual. 

Q. Do you remember any discussion of the existing conditions at 
Fort Brown? — A. I can recollect no such conversation, sir. 

Q. It was just an ordinary, friendly conversation? — A. I believe 
so, sir. 

Q. Which quarters did you occupy at Fort Brown, Mr. Lawra- 
son? — A. Quarters No. 10, sir. 

Q. "VA^iich quarters were occupied by Captain Macklin? — A. 11, I 
believe, was the number of his quarters, sir. 

Q. Was it a double set of quarters? — A. Yes, sir: it was a double 
set. He occupied the eastern half. 

Q. Who occupied the western half of this double set? — A. 1 be- 
lieve it Avas unoccupied at the time; I knoAv of no one's having lived 
there. 

Q. Who occupied the quarters next to you in the same double 
set? — A. Lieutenant Hay, of the Twentv-fifth Infantry. 



201 

Q. AA^ieiT was Liontonnnt Hay. or was or was not Lieutenant Hay 
present at Fort Brown on An<i-ust the i:Mh? — A. He was absent at the 
division rifle eoni|)etition at Fort Sill, Okla. 

Q. Do you know of your own knowledofe whether Lieutenant Hav'S 
front door was kept open or locked or unlocked? — A. I do not believe 
it was k(»pt locked: it was o-enerally kej)t shut, but T do not think it 
was locked. 

Q. Do you knoAV if anyone occupied Lieutenant Hay's (juarters 
durino- his absence? — A. Yes, sir. A pi-ivate of Coni])any C, named 
Turner, worked for Lieutenant Hay. and durin<>: his absence he slept 
in his quarters at nioht. 

Q. Mr. Lawrason. did anythin<j unusual happen about midnight 
on the 13th of August at Fort BroAvn? — A. Yes, sir. There was — a 
riot took place in town — shooting. 

Q. Did you wake up? — A. Yes, sir; I was awakened by the sound 
of the firing. 

Q. And then you did what? — A. I got up and dressed hurriedly 
and repaired to my com])any parade ground. 

Q. Mr. Lawrason. Avhen you left your (juarters to go to your com- 
pany, did you leave a light burning in your quarters? — A. I believe I 
left a light in my front room dow^nstairs. 

Q. What kind of a light? — A. A lamp — nickel lamp. Avith a Avhite 
shade on it. 

Q. Was it a large lamp or a small lamp? — A. It was an ordinary 
size lamp, with the llochester burner. T believe. 

Q. Did it give a bright light ? — A. Yes, sir. I used it for reading. 

Q. You say this lamp was downstairs? — A. In the front room; 
yes, sir. 

Q. How did it happen to be lit at that time of night downstairs in 
the front room ? — A. I lit it when I first got up to dress by, and when 
I went downstairs I carried the lamp with me to light me out of my 
quarters, which were dark. 

Q. The lamp, then, was upstairs when you woke up? — A. Yes, sir. 

Q. And you carried it down? — A. Yes, sir. 

Q. Mr. Lawrason, was your house — quarters Xo. 10 — furnished? — 
A. The front room downstairs was furnished, and my bedroom Avas 
furnished, but those were the only two rooms that were. 

Q. And the front room was where the lamp was burning ?^A. Yes, 
sir. 

Q. Was there any light in the back room downstairs? — A. No, sir; 
there Avas no light in any other room in the house. 

Q. "VMiich room did you use as a bedroom, Mr. Lawrason. in these 
quarters? — A. The back room upstairs. 

Q. A^liy? — A. Because that was the coolest room in the house — the 
breeze Avas from that side, from the rear. 

Q. Mr. LaA^'rason, your quarters were right next to Captain Mack- 
lin's? — A. Yes, sir. 

Q. Did yon spend a good deal of time on Captain Macklin's 
porch? — A. Yes. sir; I did. 

Q. Do you remember Avhether or not there was a table on his 
porch? — A. I recollect that there was a small quartermaster's table 
which he used for writing. 

Q. Where did this table usualh'- stand, do you know? — A. As I 



202 

recollect it, it was usually just about between quarters 11 and 12, on 
the porch, about between the two front doors. 

Q. Mr. Lawrason. in your quarters, what was the arrangement of 
the doors leading- into the front and back bedrooms upstairs? — 
A. There were two doors between the front and the back bedroom; 
the staircase came up in the rear bedroom, and to go into the front 
bedroom you had to turn to the right and go through a door near the 
head of the staircase. 

Q. You say the stairway ran right into the rear bedroom? — 
A. Yes ; came right up into the room. 

Q. Was there no door there? — A. Xo, sir; there was no door be- 
tween the staircase and the room. 

Q. As soon as you got to the top of the stairs you were right in the 
room ? — A. In the room. 

Q. And there was a door from the rear ? — A. Yes, sir. 

Q. Do you remember whether on the night of the 13th of August 
the front doors of your quarters were shut ? — A. The screen door was 
shut ; the heavy door was not. 

Q. What kind of division, if any. was there between your porch 
and the porch of quarters No. 9 ? — A. There was no division. 

Q. No railing? — A. No railing, sir. 

Q. Mr. Lawrason, how long have you known Captain Macklin? — 
A. Since September, 1904. 

Q. Have you served with him continuously since that time? — 
A. Yes, sir. 

Q. What peculiarities, if any, have you ever noticed with regard to 
Captain Macklin when sleeping? — A. I have noticed that he is a 
very sound sleeper. 

Q. Have you ever, yourself, tried to Avake him up? — A. Yes, sir. 
I recollect one instance at Fort Reno. Okla., when he was post ex- 
change officer there, I went to town one day and brought some money 
out for him — some change — and when I came to give it to him he was 
asleep in an easy-chair in his front room. I shook him by the shoul- 
der and spoke to him several times and told him tliatT had the money, 
and he nodded his head and said, "All right," and I was about to put 
it down and leave when Mrs. Macklin came in and laughed and said 
he was still asleep. She shook him and spoke to him and woke him 
up, and he thanked me for bringing the money, and verified it — 
counted it. 

Q. Wiat time of day was this, approximately? — A. About 4 
o'clock, I think, in the afternoon. 

Q. Have you ever seen any other person who was as difficult to 
awaken as Captain Macklin? — A. I do not believe I ever have, sir. 

Q. Mr. Lawrason, were quarters No. 9, in which you say Lieuten- 
ant Hay lived, were those quarters furnished? — A. I believe they 
were furnished about as mine were — the front room downstairs and 
the back room upstairs. I do not think Lieutenant Hay had much 
furniture in any other room, except, possibly, some in the hall way. 

Cross-examination by the Jr doe- Advocate : 

Q. Mr. Lawrason, your entire service as a commissioned officer in 
the Army covers about two years and ten months, you stated? — 
A. About that, sir. 

Q. So that your opinion as to the necessity for special- vigilance 



203 

on the part of any officer at Fort Brown, on August the 13th, and 
your opinion as to the gravity of existing conditions were based 
upon your service of less than three years; is that correct? — A. Yes, 
sir; that is correct. 

Q. Were you ever under fire ? — A. No, sir. 

Q. Or in any campaign? — A. No, sir. 

Q. When you stated that you recollected no conversation held be- 
tween you and Captain Macklin on the evening of August the 13th» 
relative to conditions then existing at Fort Brown, did you mean that 
you recollect no such conversation or that you did not or could not 
recall distinctly anything said in such conversation? — A. I mean 
that I recollect no such conversation. 

Q. That so far as your present recollection extends, then, there 
was no such conversation? — A. Yes, sir. 

Q. You stated that your quarters were furnished downstairs — that 
is, the front room downstairs — was it furnished to any great extent? 
Just tell us what was in the room. — -A. There was a rug on the floor, 
covering most of the floor; I had a roller-top desk and a quarter- 
master's table, a rocking chair — Morris chair — desk chair, and I 
think a quartermaster's chair in this room. 

Q. So, that the room was really as well furnished as the ordinary 
bachelor officer's room would be?— A. Yes, sir. That was most all 
of mj^ furniture. 

Q. And do you know of your owm knoAvledge whether Lieutenant 
Hay's quarters were furnished as extensively as your front room 
was? — A. I think it was: probably furnished a good deal more ex- 
tensively. Lieutenant Hay has a good deal of furniture. 

Q. Had you all unpacked your furniture, or. rather, had you un- 
packed all your furniture down there? — A. I had unpacked all of 
mine. I had not intended to unpack it all, but my man did it one day 
without my telling him. 

Q. Do you know of your own knowledge whether Lieutenant Hay 
had all of his unpacked or not? — A. I do not believe he had it all 
unpacked, sir. but I believe he had most of it unpacked. 

Q. Now, you say you think that his front door was not locked? 
Had you ever had occasion to enter his front door after his absence — 
after he departed from Fort Brown? — A. Yes, sir; I was in his 
quarters several times. 

Q. Did you go in the front door ? — A. I do not recollect positively 
going in the front door. I could go in from my room ujjstairs. 

Q. Well, to the best of your recollection, then, you entered his 
quarters through the room, or through the door in the partition wall 
upstairs? — A. Yes. 

Q. Rather than through his front door? — A. Yes; I generally en- 
tered through the partition room upstairs. But I have been on the 
porch and have seen his man enter, but I do not recollect ever seeing 
him take out a key and open the door. 

Q. But you had seen the man go through there? — A. Yes, sir; 
tlirough the front door. 

Q. But you do not know whether he locked it at night or left it 
open or not? — A. No, sir; I can not state positively. 

Q. You were the second officer to get over to the companies, were 
you not — you reached there very soon after Major Penrose did? — 
A. Well, ]\Iajor Penrose was the only officer who was around there; I 



204 

would not have seen the others probably — they were in front of their 
own companies. 

Q. You lit your lamp, I understand, before dressing? — A. Yes, sir. 

Q. And carried it downstairs w^th you. Was there no place in the 
hall where you could have left it — no table? — A. No, sir; there was 
nothing in the hall except a ha track, a row of hooks to hang hats on. 

Q. Your impression was at the time that the post was being fired 
^n? — A. Yes, sir; that was my impression at the time. 

Q. But you did not stop to blow out your light at all for fear it 
made a target? — X. No, sir. 

Q. This table on Captain Macklin's porch, what kind of table was 
it? You spoke of it as a quartermaster's table. — A. It was a small, 
four-legged table, rather light — I thought it was a quartermaster's 
table. It may not have been — it might have been a folding gold 
medal table. I remember it was a small, light table. 

Q. In your quarters, after you reached the head of the stairs you 
found yourself in the back room, did you not — in your sleeping 
room ? — A. Yes, sir. 

Q. Without having to go through any door at all? — A. Yes, sir; 
without having to go through any door at all. 

Q. And then when you entered the front room you just opened a 
door to your right hand ? — A. Yes, sir. 

Q. That was the only door near the head of the stairs? — A. That 
was the only door at the head of the stairs. 

Q. Do you know whether on that afternoon at Fort Reno, when you 
had this difficulty in awakening Captain Macklin, whether there were 
any contribiiting causes of any kind — whether he was unusually tired, 
or if there was any other reason for his being unusually sleepy? — 
A. No, sir. I know of no reason why he should have been unusually 
sleepy. 

Q. Now, in your experience as an officer of the Twenty-fifth In- 
fantry, had you ever had occasion as officer of the day to send out 
patrols and round up men in the adjoining town and bring them into 
barracks by 8 o'clock in the evening? — A. No, sir; I don't believe I 
ever had any such experience. 

Q. Did you ever know of such a thing being done at any time 
during your service with the Twenty-fifth Infantry other than — or, 
rather, prior to August 13 ? — A. Only in moving from Fort Niobrara 
to Fort Brown at some of the towns we stopjDed at, when it would 
be about time for the train to leave, men would be sent out. 

Q. But I mean in any post where you happened to be stationed, 
was there ever any necessity for sending patrols downtown and bring- 
ing in men prior to that time? — A. No, sir; there never had been 
before. I had only been stationed at one post. 

Q. So this sending out patrols and cutting off passes Avas, so far 
as your experience goes, an unusual proceeding, was it not? — A. Yes, 
sir. 

Q. Decidedly so? — A. Yes, sir; I think it was unusual. 

Q. You state that you have no recollection of any conversation 
with Captain Macklin relative to the conditions existing on the night 
of August 13? Does that include an expression of your belief 
that you had no conversation relative to this alleged assault on Mrs. 
Evans or the sending out of patrols or anything of a like nature? — 
A. No, sir. I think it is possible that that night or during the day 



205 

I discussed this with Captain ISIacklin — I am quite sure I did with 
some of the other officers — hut I do not recoHect havino; any con- 
versation with him (m this subject. 

Q, And durin«>: the course of your hour and a half's talk there that 
evening, or during the course of the time that you were at his 
quarters prior to the call to quarters, didn't you discuss that j^hase 
of the situation at all? — A. I do not recollect doing so. 

(Excused.) 

The court then, at lii.lO o'clock p. m., adjourned to meet at *J.15 
o'clock a. m. on May 1, 1907. 

Roger S. Fitch, 
First Lieutenant, First Carah-fj, Judge- Ad I'ocate. 



Headquarters Depart >ip:nt of Texas. 

San Antonio^ Tex.^ May U 1907. 
The court met, pursuant to adjournment, at 9.15 o'clock a. m. 
Present: All the members of the court and the judge-advocate. 
The accused, his counsels, and the reporter were also present. 

The JroGE-AnvocATES Before the next witness is introduced, I de- 
sire to state to the court that yesterday I received the following 
telegram : 

Wasiiingtox. D. C, Apl. 30. 

Lieut. Fitch. .Judgc-AOrocate-Gcnl Court-MartiaL 

Ft. I^aiii Houston, Texas, San Antonio: 

Suhixr'na Kay Rurdett not served. Wlierenhouts not known. 

Smith, Ca/it. Sinnniarij Court. 
,3..5.") p. m. 

Lieut. H. S. Grier, Twenty-fifth Infantry, was recalled by the 
defense, and being reminded that he was still under oath in this case, 
further testified as follows : 

Direct examination by the Judge- ADVf)c ate : 

Q. Will you please state again your name, rank, and station? — 
A. H. S. Grier, second-lieutenant, Twentv-fifth Infantrv, Fort Reno, 
Okla. 

Q. You have already identified the accused in this case? — A. Yes, 
sir. 

By the Accused : 

Q. Mr. Grier, how long have you been in military service? — 
A. Eight years this June. 

Q. Of what has that service consisted? — A. It has consisted of 
four years at the United States Military Academy : almost four years 
as a commissioned officer. 

O. In what regiment? — A. In the Twenty-fifth Infantry. 

Q. The entire four years in the Twenty-fifth Infantry? — A. Tes, 

Q. Mr. Grier, where were von on the 13th and 14th of August, 
1906?— A. At Fort Brown, Tex. 

0. How long had you been there up to that time? — A. Two weeks. 

Q. How long were vou there after that date? — A. I was there until 
the 22d of Se-tomber", 190(). 

Q, On what duty or duties were you at that time, and how long 

KU.I— r.7 M 14 



206 

had you been on those particuhir duties? — A. Post quartermaster and 
connnissary from the date of arrival at Fort Brown; acting adju- 
tant of the post from August 3 or thereabouts. 

Q. Mr. Grier, do you recall the weather conditions that existed at 
Fort Brown on the night of the 13th-14th of August last ?— A. I do. 

Q. What were they? — A. It was a dark, starlit night. 

Q. Was it easy or not to distinguish persons or places on that 
night ? — A. It was difficult. 

.Q. Mr. Grier. who mounted the guard on the morning of August 
the 13th?— A. I did. 

Q. In your capacity as adjutant? — A. Yes. sir. 

Q,. For the purpose of forming the usual guard mount, was it? — 
A. Yes, sir. 

Q. Who was the old officer of the day ? — A. I was. 

Q. Who relieved you as new officer of the day? — A. Captain 
Macklin. 

Q. What orders did you transmit to Captain Macklin as old officer 
of the day when he relieved you ? — A. Nothing especially ; I simpl}^ 
told him. as I recollect, that there was nothing new — the usual in- 
structions. 

Q. What were those usual instructions? — A. Relative to "the in- 
spections of the guai'd that were required to be made by post orders. 

Q. Well, what Avere those inspections that were required to be 
made by post orders? — A. That the officer of the day must inspect 
each relief at least once while on post. 

Q. Did Captain ]\Iacklin, as new officer of the day, and you, as old 
officer of the day, both report to the commanding officer. Major Pen- 
rose, for guard mounting? — A. Yes, sir. 

Q. What orders, if any, did you hear Major Penrose give Captain 
Macklin? — A. My recollection is that as I stepped jnvay after 1)eiiig 
relieved Major Penrose said to Captain Macklin. " The usual instruc- 
tions. Captain." 

Q. How" many tours as officer of the day did you do at Fort Brown, 
Mr. Grier ? — A. I did either two or three : I don't remember — not 
over three. 

Q. Did you ever receive any orders from the commanding officer 
on any of these tours relative to visiting the guards and sentinels 
between midnight and reveille? — A, I did not. 

Q. What was your custom, or what was the custom. Avith regard to 
visiting the guard between midnight and reveille while you were at 
Fort Brown? — A. I never visited the guard-after midnight at Fort 
Brown while I did duty at that post. 

Q. Mr. Grier. how would you describe the duty — that is, the ordi- 
nary routine duty — devolving upon the officers at Fort Brown? 
Would you describe it as easy or otherwise ? — A. I should say it was 
very hard. 
*Q. During the tours which you did there as officer of the day, you 
inspected each sentinel on post, did you? — A. Yes, sir. 

Q. Do yon recall what your physical condition was at the end 
of the last inspection of sentinels on post? — A. Yes; in connection 
with other duties I had, after I had made three inspections of the 
guard I Avas tired out. 

Q. Were those posts widel}^ separated — did they coA^er considerable 
ground ? — A. Yes ; they did — one post in particular. 



207 

Q. Mr. Grier. you said that from about the 3d of Ai^gust until 
up to and indudino- the 13th and 14th of August you were acting 
adjutant. In that capacity Avhat orders, if any, did you transmit to 
Captain Macklin on the isth of August i — A. I an[ not absolutely 
certain that I transmitted any. 

Q. Did 3'ou transmit any orders to any other officer { — A. I did. 

Q. AVhat Avcre those orders? — A. My recollection is that I in- 
formed Captain Lyon, Lieutenant Lawrason. that the commanding 
officer directed that they publish to their companies at retreat that all 
passes in effect on the night of August the 13th were void after 8 
p. m. ; that the men would all be gathered in. 

Q. Mr. (irier. in your capacity as adjutant, did you transmit to 
Captain Macklin any orders on the 13th of August requiring him to 
exercise any special vigilance as officer of the day? — A. I did not. 

Q. Had you heard of the alleged assault on Mrs. Evans? — A. Yes. 
1 heard it that night — that is, the night of August the 13th, about half 
past 5. 

Q. Did you know the reason of the commanding officer issuing 
these orders relative to rescinding the passes and having all men in 
the garrison by 8 o'clock? — A. Yes, sir. 

Q. What was it? — A. Because he feared that as a result of the 
Evans trouble, if the soldiers in small bunches of two or three, or 
singly, would go downtown, some of the tougher element might start 
a fight with them and beat them up. 

Q. JNIr. Grier, when you were on duty as officer of the day, what was 
your custom as to going to. bed before midnight — did you go, as a 
rule, before midnight or after? — A, I did— I usually went to bed 
right after I took check. 

Q. What about removing your clothing or any part of it? — A. I 
always completely undressed. 

Q. AVhen you were officer of the day ? — A. Yes, sir. 

Q. Mr. Grier. how long have you known Captain Macklin? — 
A. Since ]\[arch, 1904. I believe. 

Q. A little over three years i — A. Yes. sir. 

Q. You stated that you Avere quartermaster and commissary at 
Fort Brown the entire time you Avere there, I think. Do you know 
which quarters were occuijied and which unoccupied ? — A. I do. 

Q. ^Yho occui^ied these various quarters — that is, what officers oc- 
cupied the quarters on officers' line? — A. (Stei^ping to map and in- 
cating.) Quarters A were occupied by Major Penrose: 1 and 2 
were vacant : 3 Avas occupied by Captain Lyon ; 4 by Lieutenant West; 
5 by Lieutenant Grier: i'< AAas vacant: 7 by Lieutenant Chandler: 8 by 
Lieutenant Thompson, and afterwards by Lieutenant Higgins; 9 by 
Lieutenant Hay: 10 by Lieutenant LaAvrason : 11 by Captain Mack- 
lin; 12 vacant: B, Quarternuister's Clerk Matlock. 

Q. You said that the quarters No. 12, AAdiich adjoined the quarters 
No. 11 — the quarters occupied by Captain ^lacklin — you said that 
those quarters Xo. 12 AAere vacant? — A. Yes. sir. 

Q. Do you knoAv Avhether or not they AAere furnished in any way? — 
A. I do not: but I do not belieA-e they Avere. 

Q. JNIr. (irrier. in your oAvn quarters, which room did you occupy as 
sleeping apartments? — A. The back Ijedroom — the one that faced di- 
rectly on the lagoon. 



208 

Q. Was this back bedroom on the first story or second floor? — 
A. The second floor. 

Q. Wh}' did you choose this particuhir room? — A. Because, during 
the summer months at least the prevailing wind is from the south, 
and there is ahvays a breeze from the south in the evening, at night, 
and it made it a cooler room to sleep in than any in the house in the 
summer time. 

Q. Mr. Grier, when did you last see Captain Macklin on the night 
of August 13, 1906? — A. I should say it was shortly before 10 o'clock. 

Q. "Where did you see him? — A. Right outside his quarters — right 
east of his own quarters. 

Q. Was he alone? — A. No; he was with Lieutenant I^awrason, I 
believe. 

Q. When did you next see Captain Macklin? — A. I saw him about 
a quarter past 1 on the morning of August the 14th. 

Q. Under what conditions did you see him then? — A. He came to 
relieve me in command of C Company. 

Q. C Company was where? — A. C Company was at that time ex- 
tended along the wall in a general direction east and west from about 
the middle of its own l)arracks down to opposite the guardhouse. 

Q. What conversation, if any. did you have with Captain Macklin 
at about 1.15 a. m. ? — A. As I recall it. Captain Macklin came up to 
Avhere I was and said, '* All right, Grier, I will take the company." 
I said, " All right. Captain. It is stretched out from here " [indi- 
cating where the left of it was] " to down opposite the guardhouse." 

Q. What was Captain Macklin's manner at this time? — A. AVell, 
he appeared to be all right to me — absolutely normal. 

Q. Well, as regards any undue excitement? — A. I don't think I 
noticed anything of that nature about him. I do not believe he 
showed any nervousness, or any thing of that kind. 

Cross-examination by the Judge- Advocate : 

Q. Mr. Grier. when you stated that you were quartermaster, com- 
missary, and acting adjutant down at Fort Brown, did you mean 
that to include the entire period up to September '22, the date you 
left there? — A. No; only as far as it relates to my being quarter- 
master and commissary. 

Q. Your duties as adjutant ceased when the battalion of the 
Twenty-fifth left, did they not ? — A. They ceased before that. They 
ceased when Lieutenant Chandler came back from Fort Sill. 

Q. You stated about certain quarters being occupied by the fol- 
lowing officers: Lieutenant Chandler, Lieutenant West, Lieutenant 
Thompson, later by Higgins, and Lieutenant Hay. Were any of 
those officers present in the post on the night of August 13 ? — A. AVho 
were all those you named ? 

Q. Lieutenant Chandler, Lieutenant West, Lieutenant Thomp-on, 
Lieutenant Higgins, Lieutenant Hay. — A. No; none of them were. 

Q. Mr. Grier, during your service with the Twenty-fifth Infantry, 
extending over a period of almost four years now, did you ever have 
any j^ersonal knowledge of orders, similar to those issued about 5.30 
o'clock on the afternoon of August 13 by Major Penrose, having 
been issued in order to keep the men of the battalion out of possible 
trouble or danger? I refer, you understand, to revoking passes at 



209 

8 o'clock and ordorina' iiH of tlie men into the post? — A. I liavc seen 
and known of similar occasions. 

Q. Personally? — A. Yes; where the jDasses were absolntely with- 
drawn from the men and the giiard put on the bridtre. 

Q. That, however, was snbsequent to August the 18tli. wasn't it? — 
A. That was prior — that was Avhen we served at Fort Niobrara. 

Q. IIow lono- before you went down to Fort Brown? — A. The 
winter In^fore. 

Q. This order, however, that was issued on the evening of August 
the 18th was an unusual order, wasn't it? — A. ^'es; I would say it was 
out of the ordinary. 

Q. And the reason for that order, as you understocxl from the com- 
manding officer, was his fear that some of the soldiers, if they went 
downtown — stayed downtown that night — might get into trouble on 
account of the feeling the townspeople had at that time and that had 
arisen from the Fvans incident, is that right? — A. "^'es. 

Q. Did you know of your own knowledge that the mayor of the 
city had called on the commanding officer and advised him to keep 
his men in the garrison for fear of possible trouble? — A. No. 

Q. Did you so understand either from the commanding officer, how- 
ever, or from Captain ]\Iacklin? — A. Major Penrose told me that the 
mayor of the town had been to see him in regard to the p]vans inci- 
dent. I do not believe that he stated that the nuiyor advised him to 
keep the men in ; I always understood he took that step of his own 
accord. 

Q. The substance of the report that was made to Major Penrose, 
and al)Out which he told you, Avas that an assault was alleged to have 
been committed ujjon a white woman l)y a negro soldier, is that 
correct ? — A. Yes. 

Q. Did you go downtown that evening — the evening of August 
13? — A. I was in town for about three-quarters of an hour, immedi- 
ately previous to retreat. 

Q. Did you discuss that incident with anyone at that time? — 
A. You mean the Evans incident ? 

Q. Yes. — A. I never knew about it until I got back to the post. 

Q. You stated that you last saw Captain ]Macklin on August 13, 
about 10 p. m., near his quarters ? Did you stop and have any con- 
versation with him at that time? — A. I did. I was with hi'm for 
about a half or three-quarters of an hour, I should say. 

Q. What was the subject of your conversation, to the I)est of your 
recollection? — A. I do not remember what the topic of the conversa- 
tion Avas. 

Q. Can you recollect, hoAvever, Avhether during this conversation 
the Evans incident, or the orders issued in consequence thereof, was 
discussed at all? — A. I believe it was — it seems to me that Captain 
Macklin mentioned something about his going out into the town 
himself, and in all the side streets, looking up some of these men 
that were still out — it seems to me that he mentioned that at that 
time. 

Q. That is all you recollect of that conversation? — A. Well, the 
conversation was general, and T do not remember unicli aI)oiit it right 
now. 

(Excused.) 



210 

Lieut. Donald D. Hay, TAventy-fifth Infantry, a Avitness for the 
defense, was duly sworn and testified as follows : 

Direct examination by the Judge- AovocA'rE : 

Q, Please state your name, rank, and station. — A. Donald D. Hay, 
second lieutenant. Twenty-fifth Infantry, Fort Reno, Okla. 

Q, Do vou know the accused? If so, state who he is. — A. I do. 
Capt. Edgar A. Macklin, Twenty-fifth Infantry. 

By the Accused: 

Q. Mr. Hav, how long have you been in military service, sir? — 
A. Since October 28, 1902. 

Q. In what regiment or regiments have you served? — A. All of my 
service has been with the Twenty-fifth Infantry. 

Q. How long have you known Captain Macklin? — A. Since April 
or May, 1904. 

Q. About three years? — A. Three years. 

Q. In what company or companies have you served as lieutenant ? — 
A. I have served almost all the time in C Company. I have just 
been attached to other com])anies for short periods of time — most all 
the other companies of the first and third battalions. 

Q. AVho were the company commanders during your service in G 
Company? — A. Captain Bush, Lieutenant Bates, Lieutenant Mc- 
Manus, and Captain Macklin; those are all I can think of. 

Q. About how long have you served under Captain Macklin ? — A. I 
think since about July, 1901 — July or August — in the middle of the 
summer. 

Q. Your service with him has been both in garrison and in the 
field?— A. It has. 

Q. AVliat peculiarity, if any. have you noticed in Captain Macklin 
as regards his sleeping? — A. I have noticed on several occasions that 
he is a very sound sleeper — hard to awaken. 

Q. You say he is hard to awaken ? — A. Hard to awaken. 

Q. And that is under ordinary normal conditions ?^A. Under 
ordinary conditions. 

Q. Have you ever seen any other person who was as difficult or 
more difficult to awaken than Captain Macklin? — A. No, sir; I have 
not. 

Q. Do you recall any specific instances when you have had difficulty 
in arousing Captain Macklin from sleep ?^ — A. I do. 

Q. What are they? — A. I recall one instance at Fort Brown. I 
had been most all morning sitting on Captain Macklin's porch, talk- 
ing with him, and I stepped over to my house, which was next door — 
the next house — and said I would be back in a few minutes for 
lunch — I was eating at Captain Macklin's house at the time — and the 
captain stepped upstairs and laid down. I came back in about ten 
or fifteen minutes. The striker said lunch was ready, but he said 
that he had been unable to awaken Captain Macklin ; I said I would 
go upstairs and get him up, and that I could waken him all right, 
and I went upstairs and called — went to the door and called, and 
went inside and took him by the arm — but I had to give it up, I 
could not waken him up. I came downstairs and finished lunch, and 
he came down after about an hour — about an hour later. 

Q. Mr. Hay, did you ever serve at Fort Brown, Tex.? — A. I did. 



\ 



211 



Q. How long were you tliere? — A. Well, I think about two weeks — 
nitiybe a little less than that. 

Q. What quarters did you occupy at Fort Brown, Mr. Hay? — • 
A. I think the number of them was 9, but I am not sure, though. 

Q. Will you please indicate on the map the quarters you occupied 
there? — A. (Witness steps to the map and indicates.) No. 9, 

Q. Were j'our quarters furnished? — A. They were; yes, sir. 

Q. To what extent? — A. They had a rug on the floor in the front 
room, and two or three chairs — a couple of rocking chairs. I believe, 
and two or three straight chairs: a table was in there, and a bookcase, 
I guess. 

Q, Were there any other rooms furnished in this house? — A. The 
other rooms all had some furniture in them, but not much. 

Q. Which room did you sleep in ? — A. I slept in the upstairs room, 
back room upstairs. 

Q. Why? — A. That was the coolest room in the house. 

Q. ]\Ir. Hay. were you sent on any detached service from Fort 
Brown during the time you were stationed there? — A. I was sent to 
the rifle competition at Fort Sill, Okla. 

Q. About what time was this when you left? — A. I think 1 left 
about the 1st of August. 

Q. How long were vou awav? — A. I was awav until al)out the 18th 
or 19th, I think. 

Q. AVhen you left youi- (puirters. or when you left Fort Brown, did 
you leave the door — the front door of your quarters — locked? — A. It 
was unlocked : I left it unlocked. 

Q. Did you leave any orders to have it locked when you left? — 
A. I left no orders to have it locked. 

Q. Did you have a key to the front door? — A. I do not think I 
had a key to the front door. I do not exactly remember that. 

Q. Iklr. Hay, when you left on this detached service, did you leave 
any person sleeping in your quarters? — A. I gave orders to my 
striker to sleep in the house, to stay around there a good deal. 

Q. What was this striker's name? — A. Robert Turner. 

Q. What company did he belong to ? — A. To Company C. 

Cross-examination by the Judge- Advocate : 

Q. Mr. Hay. are you a graduate of the Military Academy? — A. I 
am not. 

Q. So that all the service mentioned by you has actually been com- 
missioned service? — A. Yes, sir. 

Q. Xow, 3'ou arrived at Fort Brown about what time ? Do you re- 
member the date? — A. I do not remember the date. Some time in 
the latter part of July. 

Q. I think it has already been brought out by other witnesses that 
the battalion arrived about 8 p. m. on July the ^Sth. And you left 
there about August the 1st, you said? — A. I think it was about Au- 
gust the 1st : I am not sure of the date. 

Q. You had not settled your quarters completely, then, had you — 
unpacked all vour furniture? — A. I had unpacked almost everything 
I had. 

Q. You had no idea at the time you unpacked that you were about 
to leave in a day or two for this rifle competition? — A. Xo; I had no 
idea at the time ; I did not expect to leave. 



212 

Q. Now, this man Turner, to whom yon gave orders to sleep in 
your quarters, Avas he to occupy the same room that you slept in 
upstairs? — A. He was. I gave him a cot up there in that room. 

Q. You let him sleep up there in the same room in which you were 
accustomed to sleep ? — A. In the same room. 

Q. Do you know hether or not he had a key to the front door? — 
A. I don't knoAv about that now — I won't be certain. 

Q. You said that you slept in this upstairs back room. Will you 
please explain how you reached this bedroom from the front door, 
how you Avould go up ? — A. Go in the front door and go back straight 
back the hall, straight back, and about halfway back turn to the left, 
go up the stairs, and then right at the head of the stairs was that 
room — turn to the right there, and go right into the room. 

Q. The front stairways in quarters No. 9 and in quarters No. 10 
run at right angles to the hall, then, do they? — A. Yes, sir; in both 
of them. 

By request of the judge-advocate the following question and answer 
were read to the witness, and he was asked to explain just what he 
meant. 

Q. Have you ever seen any other person who was as difficult or more difficult 
to awaken than Captain Macklin? — A. No, sir; I have not, 

A. By this I mean that Captain Macklin is the hardest man to 
awaken when asleep than any man I know of. 

Q. Is this under all circumstances? — A. Yes, sir; whenever he is 
asleep. 

Q. NoAv, on this occasion at Fort Brown when, as you state, you 
and he were talking together and you left and went to your quarters, 
and upon returning had such difficulty in awakening him — in fact, 
failed to awaken him — had you or he had any beer or anything else 
to drink on that morning prior to his going upstairs and lying 
down ? — A. I am almost certain that we had not had anything, either 
of us, because I was with Captain Macklin almost all morning. 

(Excused.) 

Dr. Ira C. Browx, a witness for the defense, was duly sworn and 
testified as f oIIoavs : 

Direct examination by the Judge- Advocate : 

Q. Please state your name, rank, and station. Doctor? — A. Ira C. 
Brown; contract surgeon, U. S. Army; station. Fort Mcintosh, Tex. 

Q. Do you know the accused ? If so, please state who he is. — A. I 
do. Capt. Edgar A. Macklin, Twenty-fifth Infantry. 

By the Accused : 

Q. Doctor Ik-own, how long have you been connected with the mili- 
tary service ? — A. A little over nine years. 

Q. AYdll you state to the court in what capacities you have 
served? — A. As medical officer, commissioned officer four years and 
four months in the volunteer service and the balance as contract 
surgeon. 

Q. AVhat was your rank in the volunteer service? — A. Major and 
brigade surgeon. 

Q. Has all of this service been in the United States?— A. No, sir. 



213 

Tt has been in Cuba and in tho Philippine Islands — the last four years 
in the United States — a little over four years. 

Q. Doctor, how lon<r have you known Captain Maeklin? — A. A 
little over three years. 

Q. Where did you know him ?— A. At Fort Xiobrai-a, Nebr. 

Q. How lon<>: were you there in the service at Fort Niobrara with 
Captain Maeklin — do you recall that? — A. I served at Fort Nio- 
brara from Februarv 10, 1903, until the abandonment of the post in 
July, 15)0(;. 

Q. While you wei-e stationed at Fort Niobrara, Nebr., what cjuar- 
ters did you occujiy there? — A. No. 4. 

Q. AVhat (|uarters did Captain Maeklin occupy at Fort Nio- 
brara ? — A. No. ;>. 

Q. Doctor, did those ({uarters, H and 4. constitute a double set of 
quarters under one roof? — A. They did. 

Q. Then vou occupied one-half of the double set and Cai)tain 
:\racklin the'other?— A. I did. 

Q. How were those quarters divided? — A. They were divided by 
a lath and plaster partition of moderate thickness. 

Q. AVere those (juartei-s one story or two story? — A. One-story 
adobe. 

Q. Do vou recall the arrangement of the rooms in those quarters? — 
A. I do. ■ 

Q. Will you please tell the court?— A. On Cajitain Macklin's side, 
No. 8. the rooms o]3ened to the left, out in the hall ; the first room to 
the left Avas the sitting room ; back of that, off from the hall, was 
another room; and off from the sitting room was another room, used 
as a bed room: a front room — two front rooms, then — and one back 
room: at the end of the hall came the dining room, and on beyond 
that a kitchen, and back of that the servants' quarters. 

Q. And the arrangement of this double set of quarters — yours and 

Captain Macklin's — was the same except that A. Mine o])ened to 

the right of the hall and his to the left. 

Q. Do you know what room Captain ^lacklin occupied as a bed- 
room in the quarters he occupied at Niobrara ? — A. I do. 

Q. AVhat room Avas it ? — A. The front room off from the room that 
I called the sitting room — the front bedroom. 

Q. Doctor, which room did you occupy in your quarters? — A. The 
back room was the bedroom. 

Q. Doctor, did you ever attend Cai)tain Maeklin in your cajiacity 
as medical officer? — A. I have. 

Q. About how many times? — A. Well. I should say two or three 
times — perhaps three or four times. 

Q. Have you had special oi)p()rtunities to observe Captain Maeklin 
and note any peculiarity or peculiarities that he may possess? — A. I 
have had. 

Q. What peculiarity, if any. have you ever noticed in Captain 
^lacklin as regards his sleeping? — A. He is a very sound sleeper. 

Q. A very sound sleeper? Do you mean an exceptionally sound 
sleeper? — A. Yes: I should say unusually so. 

Q. Do you recall any si)ecific incidents that have come under your 
observation where it has been difficult to awaken Captain Maeklin? — 
A. Yes: I have in mind several: one in particular tliat inijn-essed me 



214 

was that in trying to awaken Captain Macklin they caught me, and 
I answered the alarm, thinking they were trying to arouse me, and 
I found it was a man with the sick book; that Captain Macklin in- 
sisted upon signing the book before it went to sick call. 

Q. Well, how were you awakened ? Where was this man? — A. The 
man was on the front veranda, pounding on the door. 

Q. On whose door? — A. Captain Macklin's. 

Q. And you were where? — A. I was in the back room on my side. 

Q. Do you happen to know where Captain Macklin was at this 
time? — A. Yes; I know that he went to bed in the front room that 
night. 

Q. Do you recall any other incident ? — A. Well, Captain Macklin's 
family and mine, as well as the Captain and myself, had signals of 
pounding on the wall when one or the other was wanted or, in case 
of my absence or his, if the ladies wanted anything, and I have 
pounded on the wall on my side, and Captain Macklin was asleep on 
a divan right on the other side of it, and I could not awaken him. 

Q. Do you recall any particular incident when you yourself had 
difficult}- in arousing Captain Macklin ( — A. Yes. I had made 
arrangements to go to Valentine at 1 o'clock in the afternoon, and 
Captain Macklin was going with me, and he came back from practice 
march — a 12-mile march — and after his lunch was in his hammock 
swinging with his little boy, and finally Avent to sleep about half 
past 12, and when I shook him and told him to come on, the wagon 
was coming, and went back into my quarters to get ready, and came 
out, I found he was still asleep, and I got him out by rolling him out — 
out of the hammock, to awaken him. 

Q. You spoke of a system of signals that you had with Captain 
Macklin by knocking on the wall, the dividing wall between your 
quarters. Were you able to use this system of signals as far as 
Captain Macklin was concerned when he was asleep? — A, Not at all. 

Q. No matter how hard you pounded on the wall? — ^A. Well, I 
don't know as to that; you couldn't make enough noise without 
damaging the wall. 

Q. Doctor, how long have you been practicing medicine? — 
A. Twenty years. 

Q. What schools did you graduate from? — A. The medical de- 
partment. University of Buffalo, X. Y. 

Q. Do you belong to any medical societies? — A. I do. 

Q. What are those societies. Doctor? — A. I belong to the American 
Medical Association; the Cherry County and Nebraska State 
Medical Associations; Webb County and Texas State Medical Asso- 
ciations; Erie County and New York State Medical Associations; 
Western New York Medical Association; Buffalo Academy of 
Medicine; International Association of Military Surgeons. 

Q. You said you had served in the Philippines, Doctor. Did you 
ever serve in Manila at all? — A. I was on the board of health at 
Manila. 

Q. What position did you occupy there? — A. I was a member of 
the board, and at times — at one time, president of the board of 
health. 

Q. Did you serve in a similar capacity anywhere else in the 
Philippines? — A. I served in the same capacity in Iloilo. 



215 

Q. Ilavo you passed any examinations lately? — A, Yes: I passed 
the examination of the State of Texas for pharniaoists about a 
month a<;o. 

Q. Doctor, you stated that you served in Cul)a. What was your 
service there?— A. I was in charge of the sec^md division hospital, 
Seventh Arniv Corps, at Queniados. 

Q. Did you serve at Montauk Point ^— A. Yes. I was in charge 
of Montauk Point — closed the place. 

Q. In charge of what department? — A. The whole of it — from, I 
think, the latter part of September until the I7th of November, 
when it was closed. Previous to that I was executive officer. 

Q. I'ou were chief surgeon there? — A. I was at that date — T was 
chief surgeon from the latter part of Sei)tember until it was closed. ^ 

Q. Did you ever serve as chief surgeon on any general officer's 
stati' in the' Philippines?— A. I was General Wheaton's chief surgeon. 

Q. Did YOU have any field service with him? — A. I did. 

Q. How much Avas it, and where?— A. Well, all of it was in Cavite 
Province, and I was wdth the " Flying Column "—that was the name 
it went by ; I never knew whether'it had any regular name or not. 

Q. Doctor, before you went into the military service, what was the 
nature of vour medical practice? — A. I Avas a general practitioner 
in Butfalo.'X. Y. 

Q. Varied practice? — A. Yes; medicine and surgery. 

Q. This general practice you refer to, did it bring you or did it 
not bring you into contact with a large number of persons of all sorts 
and temperaments? — A. Yes. I was connected with the city hos- 
pital, and I saw a great number there, and in my private practice. 

Q. Doctor, Avere you, or have you ever qualified anywdiere as an 
expert ? — A. Yes ; I qualified in the State of New York. 

Q. In what subject? — A. Well, all subjects in medicine. The hiAV 
of NcAv York requires, before you can testify as an expert, certain 
formalities have to be complied with, which I did. 

Q. Doctor, as a matter of professional interest, have you, or not, 
investigated the phenomenon of sleep? — A. I have. 

Q. And also its causes? — A. So far as knowMi. 

Q. What has been the result of those investigations that you have 
made. Doctor? — A. AVell, they have been made — all physiological 
experiments have been made upon animals, principally dogs. Mus- 
cular effort produces fatigue, and fatigue is caused l)y cell change in 
the blood ; for instance, a dog that is thoroughly tired out from 
muscular effort is bled, and his blood injected into a dog which has 
had no exercise: the fresh dog will go to sleep at once. Therefore, 
from that experiment many times physiologists have agreed that there 
is a cell change, or, possibly, a germ may be worked out of it in time — 
but at present I do not know of any such — but there is a cell change 
which can be proved microscopically, and we do know from muscular 
effort and what is commonly called " tired " — feeling tired — can be 
transmitted to one who is perfectly fresh, and who will have all the 
symptoms of having gone through muscular effort, although he has 
had none. 

Q. You said that muscular effort produces fatigue. Has this con- 
dition Avhich you describe as fatigue any effect on a person's sleep or 
manner of sleeping? — A. Yes. The first two hours' sleep are the 



216 

soundest in practically all persons. After two hours the scale drops 
about 40 per cent. 

Q. Doctor, you say that muscular effort produces fatigue. Is the 
result of muscular effort — that is, in the amount of fatigue it pro- 
duces—is that uniform in all persons or all individuals? — A. It is not. 

Q. How does it differ in different individuals? — A. It differs in 
different people. Some are capable of undergoing much muscular 
effort without much aj^parent fatigue, while others upon slight 
muscular effort become fatigued, and require sleep. Some require 
more sleep than others, and some quickly recuperate from a few 
minutes' sleep, while others require several hours. 

Q. Doctor, in which one of these classes would you place Captain 
Macklin? — A. I put Captain Macklin in the class that requires con- 
siderable sleep. I have had occasion to watch Captain Macklin in 
connection with experiments that I have made, and I have found that 
he Mas capable of undergoing great muscular effort, and after a re- 
fi'eshing sleep of a few hours he was what I consider perfectly 
normal ; but it has been my observation that those Avho sleep so pro- 
foundly require more than those that are what are commonly called 
light sleepers. 

Q. Do you put Cai^tain ^Macklin in the class upon whom muscular 
effort produces excessive fatigue; is that it? — A. Yes, sir. 

The Judge-Advocate. Just one moment. Let the counsel bring out 
first the amount of knowledge that the witness has of Captain Mack- 
lin's sleeping peculiarities. It has merely been brought out, so far, 
that he has known him for a period of several years, but aside from a 
few instances to which the witness has testified, nothing has been 
brought out to show that he has any intimate knowledge of any 
peculiarities of his sleep. 

Q. Doctor Brown, were or were not your relations with Captain 
Macklin, during the time you were both stationed at Fort Niobrara, 
intimate ? — A. They were very intimate. 

Q. Were you with him a great deal ? — A. Yes ; we were practically 
one family, his family and mine. 

Q. You have had opportunities to observe him under all condi- 
tions ? — A. I have. 

Q. Have you served with him in the field ? — A. I served with him 
in the field ; yes, sir. 

Q. From your knoAvledge of Captain Macklin, what pecularity, if 
any, have you noticed as regards his manner of sleeping? — A. I have 
noticed that he is a very heavy sleeper. 

Q. You mean unusually so ? — A. Unusually so — one of the hardest 
sleepers that I have in mind. 

Q. In your varied experience in the course of your professional 
duties, do you recall anyone who is a sounder sleeper than Captain 
Macklin, or harder to arouse from slumber? — A. I can not recall 
any — in a healthy man, I mean — in a normal condition. 

Q. Now, in answer to a previous question you stated that Captain 
Macklin was a man upon Avhom muscular effort produces excessive 
fatigue, I think. Has this condition of excessive fatigue anything to 
do with a person's sleep, with the soundness with which a person 
sleeps? — A. Yes. Individuals that I was about to classify a few 
minutes ago are those that a moderate amount of fatigue or a mod- 
erate amount of muscular effort easily produces fatigue upon, from 



217 

Avliic'h theiv is a })rofouiul sleep — deep sleep — and it is in that class 
that I think Captain Macklin belonov. 

Q. Is this condition in indixidiials. Doctor, that you (lescri])ed. is 
this constitutional, or is it soniethino- that is more or less undei' the 
control of the individual? — A. It is constitutional entirely. 

Q. The individual has no control over the matter? — A. He has no 
control over — I think all individuals by great mental effort can for 
a time stand off anivmia of the brain, which produces sleep. By a 
mental eft'ort, strong mental effort, more blood passes into the brain, 
consequently sleep is for a time deferred. 

Q. Lacking in mental effort to overcome this physical condition 
of the individual — lacking in mental effort, this constitutional pecu- 
liarity that you have been talking about, that is something entirely 
beyond his control? — A. It is — it is constitutional. 

Q. He can not overcome that, except in some particular case that 
you have just illustrated, by a mental effort? — A. Xo; he can not, he 
has no control over it. They go to sleep quickly and profoundly, 
these cases. 

Q. Doctor, during which portion of a person's sleep is the slumber 
deepest ? — A. 'Jlie first two hours. 

Q. It would be harder, then, to wake a person (hiring the first two 
hours of his sleep? — A. Undoubtedly, if it was hard at all. 

Cross-examination by the Judge-Advocate: 

Q. Doctor Brown, you s})oke of some experiments which you have 
conducted with reference to ascertaining Captain ]Macklin"s abilities 
in the sleeping line. Were those made here or were they made at 
Fort Niobrara ?- — A, Oh, they were made eight or nine years ago — 
no connection with Captain Macklin. 

Q. Oh, no connection Avith Captain Macklin!' — A. Xo: that wa- 
simply in some physiological studies. 

The JiDOE- Advocate. I do not believe you understood the ques- 
tion. I will ask the reporter to read the question. 

The reporter read the question as follows : 

Doctor Brown, you spoke of some #xi>erinu'iits you lime conducted with 
reference to ascertaining Captain Macklin's abilities in the sleeping line. Were 
those made here or were they made at Fort Xiol)raraV 

A. You have reference to Captain Macklin's sleeping? 

Q. Yes. — A. Then, that physiological answer I don't want in there 
at this time. My observation of Captain INIacklin was made at Fort 
Niobrara. 

Q. Did you conduct regular experiments with him there, or did 
you merely notice, or simply have him under observation in on- 
nection A. With his condition for which I was treating him. 

Q. "Then his condition was not normal at that time: he was under 
medical treatment? — A. He was under medical treatment for 

Q. Isn't it a fact that a i)erson when in a physically run-down 
condition often needs more sleep and sleeps more soundly than the 
same person when in j)erfect heahh? — .\.. I believe so. 

Q. So that any exj)eriments you made at that time, or any observa- 
tions you made of Captain Macklin's sleej)ing powers, were made, so 
far as Fort Xiobrara Avas concerned, while Caj)tain Macklin was not 
in perfect health? — A. Xo. sir. My observation was made of him 



218 

in his normal state as well as while he was suffering from various 
troubles Avhich had no effect whatever upon his sleep. 

Q. Had no effect? — A. No. The condition for which I was treat- 
ing him had no effect upon his sleep ; nothing in that connection. 

Q. Are you yourself a sound sleeper or a light sleeper? — A. Well, 
I — at the present time if I have got my right ear on the pillow I am 
a very soimd sleeper, because I do not hear very well with my left 
lar, but my normal condition is that of a light sleeper — entirely so. 

Q. But at Fort Niobrara, when you were awakened by the orderly 
pounding on Captain Macklin's door, you were at that time a light 
sleeper, were you not? — A. Xo; my condition then was the same as 
now. 

Q. You do not happen to recollect which ear vou were sleeping on 
then?— A. I don't recall that. 

Q. In quarters 8 and 4 at Niobrara the front doors are very close 
to each other, are they not ( — A. Yes. I think they are, perhaps, 2 
feet apart. 

Q. Did this instance occur in the summer time or in the winter? — 
A. No; it was in the fall — cold weather. 

Q. So that the windows and doors in both sets of quarters were 
closed? — A. Yes. 

Q. Now, wnth reference to that partition wall between quarters 3 
and 4, are you positive that it is merely a lath, and plaster wall, or 
may it not be an adobe wall plastered over on each side? — A. No; it 
is lath and plaster. I have driven nails in it to hang up pictures. 

Q. And have seen the laths? — A. And I have seen the laths. 

Q. About h(»w thick is it. do you recall? — ^A. Why, I think there 
is a 2 by 4 — the vacuum in there, so to speak, is about — the space 
between the laths, the 2 by 4. it would make it 4 inches. 

Q. Made a 4-inch air space in there? — A. Yes. sir; made a 4-inch 
air space in there, and then the ordinary lath. 

Q. Ordinary lath and plaster on each side? — A. Yes. 

Q. Could you hear ordinary conversation going on on the other 
side of the house? — A. No; you could not hear — not ordinary con- 
versation. 

Q. If anyone called out. however, you could hear it? — A. If he 
called loudly; if you were listening, you could hear it. 

Q. It was meant, however, to be a sound-proof wall, wasn't it, so 
as to keep the ordinary sounds from passin:^ from one house to the 
other?— A. Yes. 

Q. Were you ever at Brownsville ? — A. No, sir. 

Q. Did you c(mduct any experiments with reference to Captain 
Macklin's sleep down here at Fort Sam Houston? — ^A. I did not. 

Q. Now. in this connection, when Captain Macklin came in from 
]^ractice march and Avent to sleep in the hammock, and you had such 
difficulty in arousing' him, do you know whether after this practice 
march he- had taken anything to drink at all ? — A. I don't think he 
did. I don't know, however; I would not say positively, but I saw 
him practically every miiiute except Avhen he was at the table, and he 
never drank anything at the table ; I know that. 

Q. Now, with reference to that time that Captain Macklin was 
asleep on a divan in the hall and you pounded on the wall without 
arousing him, do you know whether he had had any beer or anything 
else to drink a short time before? — A. I don't know. 



210 

Q. And. siiuiliirly. the tiiuc tlic oi-derly jXHiiidcd on his door and 
failed to awaken him but awakened you, do you know whether or not 
Captain Macklin had had anything); to drink in the line of beer, or 
i(n3'thing else, before he went to bed? — A. I do not. 

Counsel for the Accused (to the reporter). Just icad that cjues- 
tion. please. 

(The reporter read the (juestion.) 

Counsel kok the Accised. I believe you misquoted the doctor. I 
think he said a man with the sick book. 

The Ji doe-Advocate. The jud<):e-advocate accepts the correction. 
1 thought the doctor said orderly, but 1 remember now he said a man 
with the sick report. 

Counsel you the Accused. Furthermore, he did not limit it to one 
single instance. 

The Jidce-Advocate. I think that question is perfectly right as it 
stands, with the substitution of the term " man with the sick report "' 
for •• orderly." I have no recollection of more than one incident of 
that nature ha\ing been cited by the doctor. 

Q. You spoke in your direct examination of but one instance upon 
which you were asleep in your back bedroom and Captain ^lacklin in 
his front bedroom, and when a man wdth the sick report knocked on 
his front door and awakened you he failed to awaken him. Is that 
not correct? — A. I think I said, "I have in mind one particular 
occasion." 

Q. That was the occasi(jn to wdiich my question referred ? — A. That 
Avas the occasion. 
■ Q. And you so understood it. did you not? — A. Yes. 

Q. Now. is it or is it not a fact that beer, even if in very small 
quantities, if taken just before one retires, has a soporific effect? — 
A. That depends upon the idiosyncracy of the individual. Alcohol 
has two effects — the ordinary beer contains about 5 per cent of alco- 
hol — the innnediate effect of alcohol is stinudating and the tendency 
would be the reverse of sleep. 

Q. When does the stimulating effect die away and the soporific 
effect, if there be such, begin? — A. Well, as I have already stated, 
it depends u])on the individual. Now. take me. for example, if you 
wish. The (lei)ression comes on about three liours after I take 
alcohol. 

Q. Well, what is ordinarily about the average length of time from 
the time. say. a j^erson drank a moderate quantity of beer until the 
depressing effect Avould make itself felt? — A. Is this person accus- 
tomed to drinking, or is he a teetotaler? 

Q. AA'ell. a person that is a moderate drinker, not a total ab- 
stainer? — A. Why. the effect of a small amount of beer on a person 
who drank moderately. I do not think it would have any effect upon 
his sleep, but might on his aj)petite: it would stinndate his a|)petite. 
perhaps, but I do not think it would have any effect upon his sleep 
in the case of a man wdio was a moderate drinker, unless he drank a 
sufficient quantity of V)eer. for instance, to accumulate 85 or 40 per 
cent of alcohol. 

Q. AVhat do you mean by " sufficient quantity?" — A. Well, a bottle 
of beer contains — well, beer generally contains about 5 ])er cent alco- 
hol, and chaiii]jagne. for iustuuce. contains 10^. Now. a niiin will get 



220 

action quicker from di-inking champagne than he would from beer — 
just twice as quick. 

Q. To repeat my question, Doctor, what, in your opinion, would 
be — or what amount of beer, in your opinion, would be — needed to 
affect the sleep of a man who is accustomed to taking a drink occa- 
sionally and is not an abstainer? — A. Oh, I should say a half dozen 
bottles — pint bottles. 

Q. You think that two or three bottles would not influence his 
sleep? — A. I do not think it would in the case of a man who was 
accustomed to drinking moderately. 

Q. That is based itpon your experience of the average — you are 
speaking in general terms? — A. In general terms. 

Q. Of the average moderate drinker? — A. And my own self par- 
ticularly. I have experimented considerably upon myself — I can get 
more satisfaction out of that than from anybody else. 

(Elxcused.) 

Capt. Sami^el p. Lyon, Twenty-fifth Infantry, being recalled by 
the defense and being reminded that he was still under oath, futher 
testified as follows : 

Direct-examination by the Jidge- Advocate : 

Q. Please state again. Captain Lyon, your name, rank, and sta- 
tion? — A. Samuel P. Lyon, captain Twenty-fifth Infantry, Fort 
Reno, Okla. 

Q. You, of course, know the accused and have identified him once 
or twice? — A. Yes. 

Questions by the Accitseo : 

Q. How long have you been in the service, Captain? — A. Seven- 
teen years and about four months. 

Q." What has been the nature of that service? — A. I served from 
the '28th of January, 1890, until October, 1894, as a private, corporal, 
and sergeant of Tr'oo]) A First Cavalry ; and since that time as a sec- 
ond lieutenant, first lieutenant, and captain of infantry. 

Q. What company do you command in the Twenty-fifth In- 
fantry? — A. I) Company. 

Q. How long have vou been in command of Company D? — A. 
Since January 1, 1903.' 

Q. Where were you stationed on August 13. 1906?— A. At Fort 
Brown, Tex. 

Q. And how long was that your station ?— A. I was at Fort Brown 
from the 28th of Julv until the 24th or 25th of August, 190(). 

Q. How long have you known Captain Macklin?— A. I have known 
Cai:>tain Macklin since the fall of 1894. 

Q. Have vou known him intimately? — A. Yes: I have. 

Q. What "is Captain Macklin's reputation in the Twenty-fifth In- 
fantry in regard to the performance of duty?— A. Captain Macklin 
has the reputation in his regiment of being a most conscientious and 
painstaking officer in the performance of his military duties, sir. 

0. In what manner does he perform officer of the day duty, espe- 
cially? — A. He is most particular in the performance of his duty as 
officer of the dav, and most efficient. 

Q. What is his reputation for frankness?— A. He has the re]iuta- 



221 

tion of being a man who is absolutely and exceptionally frank in 
his statements. 

Q. "^A^ien Captain Macklin is asleep, have you or have you not no- 
ticed under normal conditions whether it is difficult to arouse him? — 
A. I have noticed it many times. He is extremely diflicult to wake 
up Avhen he is asleep. 

Q. How would you regard him. compared Avith the average man 
in your experience? — A. He is much more difficult to awaken than 
the average man, in my experience. 

Q. "\^nien did you last see Captain Macklin on the night of August 
the 13th before the shooting? — A. Between half-past 1) and 10 p. m. 

Q. AVlien did you first see Captain Macklin, and where, after the 
shooting? — A. I met him approximately at 1.15 a. m. on the 14th 
of August on the walk leading in from the main gate across the 
parade ground and near the front line — near the front of the line of 
company barracks. 

Q. "^AHiat was his manner at that time? — A. He was chagrined, 
apparently, at having slept through certain excitement that had been 
going on in the garrison for some hour or so, and was in a hurry to 
get to the commanding officer, but there was nothing remarkable or 
unusual in his manner otherwise. 

Q. ^Y\n\e the First Battalion of the Twenty-fifth Infantry was 
stationed at Fort Brown did vou or did a'ou not regularlv do dutv as 
officer of the day?— A. I did". 

Q. About how often did you go on as officer of the day ?— A. Part 
of the time every two days, ,or every third day, and the rest of the 
time ever}' fourth day — that is, up to about the 18th of August, when 
the officers returned from Sill and made the duty a little easier. 

Q. "^AHiat orders were in force at that time other than those con- 
tained in the authorized manual of guard duty? — A. The orders 
were that the officer of the day should examine each sentinel while on 
post: and then there were certain orders relative to the sentinel on 
post Xo. 2; other than that the guard manual applied. 

Q, AVliat were those orders with respect to Xo. 2 ? — A. During the 
day his post was in the rear line of barracks, between the barracks 
and the wall dividing the post from town. His orders there were to 
keep Mexicans and people generally away from the rear of the bar- 
racks. 

Q. "\ATiat orders, if any, were in force requiring the officer of the 
day to visit the guard or sentinels between midnight and reveille? — 
A. There were none. 

Q. ^Miat was the custom at Fort Brown during the time you were 
stationed there with regard to the officer of the day going to bed be- 
fore midnight ? — A. My custom usually was to go to bed when I com- 
pleted my third inspection of sentinels, when I had inspected my last 
relief: and I think it was the custom of the other officers to do the 
same thing. 

Q. And when did you complete that last inspection of the third 
relief? Before or after midnight? — A. I usually tried to complete 
that before midnight ; usually finished about " taps." 

Q. What was the character of the night of August the 13th? — 
A. It was clear. The stars were shining, but not brilliant, and the 
night was dark. 

1643—07 M 15 



222 

Q. Did any of the men of vour company sleep through the firing 
of August 13^, 1906 ?— A. I know of two that did. 

Q. Who were they?— A. There Avere two men, one named Jones 
and tlie other Studemeyer — men who worked for me. 

Q. Where were they sleeping? — A. They were sleeping in a room 
on the gallery in the rear of my quarters. 

Q. Did voii receive any orders as company commander on August 
13 from the commanding officer through his adjutant? — A. I re- 
ceived orders either directly or through his adjutant, I do not remem- 
ber now how that Avas, to notify my company at retreat that all 
passes after 8 o'clock were rescinded and that no men would be 
allowed out after that hour — out of the post. 

Q. Were you disturbed in consequence of this order? — A. I was 
not. 

Q. Did you follow your usual routine, or not ? — A. I did ; yes, sir. 

Q. What was the character of the officer of the day's duties at Fort 
Brown, Captain ? — A. Taken in connection with the other duties and 
the frequency with which the tours came, it was hard. 

Q. What was your physical condition upon retiring at night, after 
completing your inspection of your sentinels? — A. After what? 

Q. After ' completing your inspection of your sentinels and re- 
tiring, what was your jjhysical condition, after performing your 
duties as officer of the day? — A. I was usually tired and anxious to 
get to bed — I always was, in fact. 

Cross-examination by the Judge- Advocate : 

Q. Captain Lyon, did you actually see these two men of your 
company, Avhomyou named as having slept through this affair — did 
you see them while they were asleep ? — A. I did not. 

Q. So it is hearsay as to their having slept through it ? — A. It was 
reported to me by my wife. 

Q. Did you see these men soon after the firing? — A. I did not re- 
turn to my quarters until about half past 3. 

Q. And they remained at your quarters during this time? — A. They 
. remained at my quarters during all of this time. 

Q. They did not waken up at all? — A. Not until long after the 
firing. They were awakened. 

Q. They were called by somebody? — A. Yes, sir; they were called 
Oy somebody. 

Q. Do you know whether these men had been celebrating pay day 
the day before or two days before? — -A. They were both servants of 
mine— one was my cook and the other my striker — and I noticed no 
signs of any celebration 

Question by the Court : 

Q. In order to put it in the record, I will ask Captain Lyon to 
state the duties of officer of the day — what were the duties of officer 
of the day at Fort Brown in case of an alarm? — A. I think the 
Guard INIanual provides that in case of alarm the officer of the day 
shall take such steps as may be necessary for the safety of the camp 
or garrison. 

The Judge- Advocate. I would like to state that that was brought 
out by Major Blocksom, who read the paragi'aph from the Guard 
Manual specifically covering that point. 



223 

Q. There ^vas no other order on that subject e.\cei)t tliat provided 
in the Guard Manual ? — A. At Fort Brown ( 

Q. Yes. — A. No, sir; there was no other order. 

(Excused.) 

Associate Counsel for the Accised. ^lay it please the court, for 
the purpose of accounting" for the whereahouts of Captain Macklin 
through disinterested witnesses, on the nif>ht of August the 13th, we 
have subpoenaed two civilian witnesses. One of them is Mr. O. J. 
Matlock and the other is a boy named AVesley Bailey, living iu New 
Orleans. Mr. Matlock is here and is ready to be introduced before 
the court; his examination will be a very brief one, limited to his 
knowledge of Captain ]Macklin's whereabouts on the night of August 
the IHth. Mr. AVesley Bailey has not yet appeared. A number of 
telegrams have been sent in by the judge-advocate, and he has been 
regularly subpoMiaed through the regular authorities. In case he 
does not ap])ear, his testimony has already been introduced through 

the witness Private Howard and , who have testified 

they saw him near the gate jjrotecting some children from a dog. 
This Wesley Bailey was simply one of the children who was being 
conveyed through the parade gi'ound by the officer of the day. We 
consider his testimony is not important enough to warrant a delay. 

The Judge-Advocate. I would like to state, in this connection, that, 
by the suggestion of senior counsel for the defense, the judge-advo- 
cate has just a few moments since sent a telegram to this Mrs. Bailey, 
the mother of Wesley Bailey, telling her that the court was about to 
adjourn and that the presence of herself and her son was not desired 
by the defense. And this was at the request of senior counsel for 
the defense. 

The President. As I understood the counsel to state, this witness 
had been asked to come here for the purpose of accounting for the 
whereabouts of the defendant on the night of August the 13th, 1906 ? 

Associate Counsel for the Accused. Yes, sir. 

Oscar J. ]\Iatlock. a witness for the defense, was duly sworn and 
testified as follows : 

Direct examination h\ the Jldge- Advocate : 

Q. Please state your name, residence, and occupation, Mr. Mat- 
lock. — A. My name is Oscar J. Matlock. I am at present at Jef- 
fersonville, Ind., a clerk in the quartermaster's department there. 

Q. Do you know the accused in this case? If so, state who he 
is. — A. Yes, sir; Captain Macklin. 

Q. Of what regiment? — A. Of the Twenty-fifth Infantry. 

Questions by the Accused: 

Q. Mr. Matlock, were you ever stationed at Fort Brown as 
quartermaster's clerk? — A. Yes, sir. 

Q. Were you stationed there in that capacity on the 13th of 
August ? — A. Yes. sir. 

Q. AAliere did you live at that time? — A. I lived in B quarters, 
up next to the river, at the end of the officers* line — in that house 
there, sir [indicating on map]. 

Q. On the west of quarters Xo. 11 and 12 ? — A. Yes^ sir. 

Q. Did you see Captain Macklin on the night of the 13th of 



224 

August? — A. I saw him al^out as late as 6 or 7 o'clock in the even- 
ing — I do not remember the exact time. 

Q. How did you happen to see him about that hour? — A. Well, 
his house was just next door to mine, and I saw him on leaving my 
house in the evening. 

Q. Did you hear him any later time that evening? — A. Yes, sir; 
I heard him pass, making his round of the guards, about 11 o'clock — 
between 11 and 11.30. 

Q. What fixes that on your memory, Mr. Matlock? — A. Well, I 
was sitting on the porch on that side of the quarters back of the 
guardhouse, and I heard him coming across the front of the gymna- 
sium toward the guard, and when he got near to the guardhouse 
the guard halted him, and I heard him reply, *' Officer of the day." 

Q. You recognized Captain Macklin's voice ? — A. Yes, sir. 

Q. You are familiar with that, are you ? — A. Yes, sir. 

Cross-examination by the JuDOE-ADvocA^rE : 

Q. Wliere was the gymnasium located? Will you point it out on 
the map, Mr. Matlock? — A. The gymnasium was located right in 
this corner here, fronting about even with the guardhouse. [The 
witness indicated a point in a southerly direction from the guard- 
house and near the corner of the road.] 

Q. You heard Captain Macklin coming across in front there? — 
A. Yes, sir. 

Q. And this small house in which you were, will you point that 
out — about where it was ? — A. [The witness here indicated the build- 
ing marked " B," just east of the guardhouse.] 

(Excused.) 

Counsel for the Accused. May it please the court, in the absence 
of this bo}', Wesley Bailey, we have only two more witnesses to intro- 
duce — Major Penrose ancl Colonel Hoyt — and we believe that we can 
close our defense in an hour and a half. We prefer and request that 
we take up these two witnesses to-morrow morning; it is now 10 
minutes to 12 o'clock, and the examination of Major Penrose, who 
will be our first witness, is apt to be somewhat extended, and we 
think if we start in wath them to-morrow morning we can close our 
defense in an hour and a half. 

The President. Does that include the arguments, too? 

Counsel for the Accused. Yes, sir. 

The Judge- Advocate. May it please the court, if there is no objec- 
tion on the part of the defense, the prosecution would like to have 
Dr. Ira C. Brown, who left the stand a few moments ago, recalled. 
I have another question or two which I wish to ask him. 

Counsel for the Accused. We have no objection. 

Dr. Ira C. Brown was recalled by the prosecution for further cross- 
examination, and being reminded that he was still under oath, further 
testified as follows : 

Recross-examination by the Judge- Advocate : 
Q. Doctor Brown, in the case of light sleepers, does a moderate 
amount of beer — say a bottle or so — taken a short time before retir- 
ing, produce a soporific effect or not? — A. I think it would on most 
any person who was a novice in the question of drinking, or, to be 



225 

more specific, a teetotaler: in his case a little beer Avonld. perhaps, 
have a quieting effect. 

Q. But if a person were not a teetotaler. Avhat effect would it 
have? — A. A moderate amount of beer? 

Q. Yes, sir. — A. A glass of beer, for instance ? 

Q. Or a bottle — a pint bottle? — A. A pint bottle of beer on a per- 
son Avho Avas a teetotaler. I think. Avould act as a mild stimulant. 

Q. If he were not a teetotaler, however? — A. If he were not a tee- 
totaler — a moderate drinker — I do not think he would get any effects, 
except, perhaps, quenching the thirst. 

Q. In the case of heavy sleepers — that is. a person Avho sleeps very 
soundly indeed, does a moderate amount of beer, taken just before 
going to bed. have any effect other than that you just stated? — A. I 
think not. 

Q. So it is immaterial whether he is a light or a heavy sleeper? — 
A. Yes; a small amount of beer. 

Q. But in Captain Macklin's own ca^e have you ever noticed 
M^iether it had any effect on him or not — a bottle of beer taken 
before bedtime? — A. Why, I don't know what effect it has had on 
him, so far as sleeping goes; but I have heard him state that if 

Q. Well, you do not know of your own knowledge or from j^our 
own observation? — A. I do not know of my own knowledge what 
effect it has had on his sleep. 

Q. On the soundness of his sleep — you do not know anything about 
that ? — A. I do not know anything about that. 

(Excused.) 

The court then, at 12 o'clock m., adjourned to meet at 9 o'clock 
a. m. on Thursday, May 2, 1907. 

Roger S. Fitch, 
First Lieutenant, First Car airy, Judge- Advocate. 



Headquarters Department or Texas, 

San Antonio, Tex., May 2, 1907. 
The court met. pursuant to adjournment, at 9 o'clock a. m. 
Present: All the members of the court and the judge-advocate. 
The accused, his counsels, and the reporter were also present. 

Wesley Bailey, a witness for the defense, was dulj^ sworn, and 
testified as follows : 

Direct examination by the Judge-Advocate : 
Q. T'iTiat is your name? — A. Wesley Bailey. 
Q. AVhere do you live ? — A. Brownsville. 
Q. "^ATiere do you live now ? — A. I don't knoAv. now. 
Q. Do you know that officer sitting over there [indicating ac- 
cused] ? — A. Yes, sir. 

Q. \A1io is he ? — A. Captain Macklin. 

Q. How old are you, Wesley ? — A. Thirteen. 

By the Accused : 
Q. Weslej', you are not living down there in Brownsville now, are 
3''ou ? — A. No, sir. 



• 226 

Q. A^^iere do you live now ? — A. I don't know. 

Q. Did you come from Xew Orleans ? — A. Yes, sir. 

Q. How long- have 3^011 been down there at New Orleans? — 
A. About a month or so. 

Q. How long did you live down at Brownsville ? — A. I don't know. 
T lived there for about two years, I think. 

Q. Were you down there on the 13th of last August, do you remem- 
ber? — A. Yes, sir. 

Q. Do you happen to remember that night ? — A. Yes, sir. 

Q. A^^iat were you doing that night ? — A. I was at the party. 

Q. AMiat party Avas that ? — A. At the Cowens' house. 

Q. And that was down town, was it? — A. Right by the post — one 
block from the post. 

Q. You lived in the post, didn't you, and went clow^n there? — 
A. Yes, sir. I was staying at Mr. Matlock's. 

Q. Now. after this party was over, what time was that, about? — 
A. Well, it was after 11 — I don't know what time it was. 

Q. AVliat did you do after finishing at the party? — A. I went with 
the girls in the house, and went over to my house, and looked at some 
books, and went to bed. 

Q. Now, Wesley, when you were coming from Mr. Cowan's house 
up to your house, did you haA'e to pass through the garrison gate? — 
A. Yes, sir. 

Q. Well, after you had gotten inside of the garrison, did any- 
thing happen ? — A. Yes, sir. The dogs were barking at us, and all of 
us got scared, and Captain Macklin came running up, and he let us 
pass because the dogs Avere after us. 

Q. He chased the dogs away, did he ? — A. Yes. sir. 

Q. And then you people got home all right? — A. Yes, sir. 

Q. And then where did he go after this? — A. He went right to his 
left, along the side of the walk. 

Cross-examination by the Judge- Advocate : 

Q. Wesley, did you say the dogs were barking at you? — A. Yes, 
sir; the dogs were barking at us. 

Q. Were there more than one dog? — A. I think there were two or 
three; I am not sure. 

(Excused.) 

Maj. C. W. Penrose, Twenty-fifth Infantry, was recalled as a 
witness for the defense, and being reminded that he was still under 
oath, testified as follows : 

Direct examination by the Accused ; 

Q. Major Penrose, how long have you been in military service? — 
A. Nearly twenty-three years. 

Q. Will you please give a brief synopsis of your service? — A. I 
served through the grades of second lieutenant, first lieutenant, and 
captain of the Eleventh Infantry; I was transferred from the 
Eleventh Infantry to the Twenty-third; I came from the Twenty- 
third to the Twenty-eighth; and I was promoted from the Twenty- 
eighth Infantry to major of the Twenty-fifth Infantry. 

Q. Major, how long have you known Captain Macklin? — A. I 
have known Captain Macklin nearlv twentv vears — twenty vears this 
fall, I think it is. 



227 

Q. Have you or have you uot served with him iu any organization 
or organizations? — A. I have. When Ca])tain Macklin Avas first ap- 
pointed a second lieutenant in the Eleventh Infantry he was assigned 
at my request to my company, and served in that caj^acity until his 
promotion — although T was not with the company except for a short 
time after he joined. He again served with me after his transfer 
from the P^leventh Infantry to the Twenty-fifth, which brought him 
to my battalion. 

Q. Major, you stated that he was assigned, at your request, to your 
company. AVliat reason, if any, was there for your making this re- 
quest to have Captain ISIacJclin assigned to your company? — A. There 
Avere some three or four second lieutenants appointed to the regiment, 
and it was left to the regiment commander to assign them to com- 
panies. I had known Captain INIacklin a number of years l)efore 
that; T had been with him on various occasions at Fort A])ache, 
Ariz.; he was a clerk in the exchange at the time I Avas exchange 
officer; I got to know him very Avell then; taking that into considera- 
tion, and also the fact that he had served for several years as an 
enlisted man, I considered that he Avas a desirable man to haA'e in my 
company. 

Q. ISIajor. Avhere Avere you on the 13th-14th of August last? — A. I 
was at Fort Brown, Tex. 

Q. HoAv long had you been there up to the 13th of August? — 
A. We arriA^ed on the 28th — on the afternoon of the '28th of Ju1a% 
1906. 

Q. Upon Avhat duty were^you at Fort BroAvn at this time? — A. I 
commanded the post at Fort Brown. 

Q. Did you command the post at Fort BroAvn during the entire 
time that it was garrisoned bv a battalion of the TAventv-fifth In- 
fantry ?— A. I did. 

Q. Do you recall. Major, the climatic conditions, or weather con- 
ditions, of that night — the night of August 13-14? — A. Very well. 

Q. Will you please describe them? — A. It was a dark, starlight 
night; there Avas a slight breeze from the south, which Ave had, I 
think, all the time I was there. 

Q. With regard to that night. Avas it easy or otherAvise to distin- 
guish individuals or places or buildings? 

The Judge- Advocate. Will the counsel kindly make that question 
a little more specific as to distances and objects? 

Q. Major Penrose, A'oii were outside of your quarters during that 
night, were you not? — A. Yes, sir. 

Q. Do you recall that it Avas difficult or otherwise to distinguish 
buildings or places during that night? — A. It was. It was A'-ery 
difficult; you could not tell a white man from a colored man, I do 
not think! G feet aAvay that night. With reference to buildings you 
could distinguish them at a farther distance than that, but I do not 
know exactly hoAv far — you Avould haA'e to be close on to the building 
before you Avould be able to see. 

Q. Was there or Avas there not. about midnight or shortly after on 
August the 13th, an unusual disturbance at the post of Fort BroAvn ? — 
A. There was ; yes, sir. 

Q. What Avas this disturbance? Briefly, what did this disturbance 
consist of? — A. It consisted of a great manv shots being fired directlv 



228 

outside the post, which gave me the imiDression that the post was being 
attacked, or shot up. 

Q. Major, where were you when this firing that you have just men- 
tioned commenced ? — A. I was in my quarters. 

Q. In your quarters? Were you in bed? — A. I was. 

Q. Major, had your whole family retired? — A. We had. 

Q. AVliat quarters did you occupy at Fort Brown, Tex. ? — A. I oc- 
cupied the quarters on the eastern end of the line of officers' quar- 
ters— "A." _ _ . 

Q, ^Vliat lights, if any, were burning in your quarters at the time 
this firing began ? — A. There was a lantern turned down low that was 
in the front room on the second story, on the east side of the building. 

Q. Were there any lights on the first floor, the first story, of your 
quarters ? — ^A. No, sir. The first floor, you say ? 

Q. Yes, sir; the first floor of your quarters. — A. No, sir; there 
w ere not. 

Q. You w^ere not downstairs, then, sitting in any of those rooms 
dow^n below, when the firing began? — A. No, sir — no, sir. I was 
lying on my bed wdien the firing began. 

Q. ]Major, was any report made to you on or about the 13th of 
August, 1906, regarding any offense or alleged offense committed 
hj any member — any enlistee! man — of the Twenty-fifth Infantrj^?^ 
A. There w^as; yes, sir. About half-past 5 o'clock in the afternoon 
of August the 13th a Mr. Evans, of Browaisville, and the mayor of 
the city — Maj^or Frederick Combe — came into the garrison, and Mr. 
Evans reported to me that on the night before, about 9 o'clock, his 
wife had been grabbed from behind by a man who she was sure was a 
negro soldier. 

Q. Did this cause you take any special action with regard to your 
command, as regards the enlisted men? — A. It did; yes, sir. I 
immediately sought the officer of the day, and I told him that all 
joasses would be revoked after 8 o'clock that night, and I wanted him 
to send out not less than three patrols into the town of Brownsville, 
and notify all the enlisted men that they must be in the post by 8 
o'clock that night; I told him that if anj^ of the men refused to 
return the}^ would be arrested and brought in; I further told him 
that no one would be allowed out of the post after 8 o'clock that 
night. 

Q. Who was this officer of the day. Major, to whom you gave, or 
sent, these orders? — A. The accused, Capt. Edgar A. Macklin, 
Twenty-fifth Infantry. 

Q. Other than these special instructions that you have just stated, 
did you give Captain Macklin any other special orders during the 
day- — during the 13th of August, in regard to the performance of 
his duties as officer of the day ? — A. I did not, sir. 

Q. From whom did you receive this information about this alleged 
attack on Mrs. Evans, Major? — A. I received it from Mr. Evans — 
Lon W. Evans, I think his initials were; he was the husband of this 
woman who was supposed to have been assaulted. 

Q. Did he come out there alone to the post and give you this in- 
formation? — A. No, sir. As I stated, he came in company with the 
mayor of Brownsville, Doctor Combe. 

Q. Did 3^ou have an opportunity to investigate this matter before 



229 

this disturbance about uiidnight on the 13th of August? — A. No, 
sir; I did not. 

Q. Major, what impression did this statement of Mr. Evans make 
upon your mind as regards this assault? — A. I did not belie\'e that 
Mrs. Evans had been assaulted by a soldier — I told him so when he 
made this report to me, that I could not believe it, but that I would 
do everything that I could to investigate the matter, and if it was 
one of our men, to ferret out the guilty man. His description, or 
rather her description that he repeated to mo, was Acry vague 
indeed. She told him that it was a large, tall, l)hu'k negro, dressed 
in a blue shirt, with khaki trousers and a slouch hat. I told Mr. 
Evans at the time that I had a great many men who would answer 
that description; that there were probably 50 or 60 men in the com- 
mand that were large, tall, dark negroes, and that it would be utterly 
imjiossible for me at that late time to detect who the man was, but 
that if, after Mrs. Evans came to — after she recovered from her 
fright and shock, if she could remember anything about the man at 
all that would be distinctive, that I wished he would rei)ort to me and 
I would do whatever I could. I also told him that if Mrs. Evans was 
willing to do so she could come to mv office the next morning and I 
would have each and every man oi my command answering this 
description brought before her singly and she could — or, rather, I 
would give her an opportunity to recognize the man. Mr. Evans 
told me that he was positive that his wife would not be able to recog- 
nize the man. 

Q. So this report did not, impress you as anything requiring any 
extraordinary action on your part otlier than an ordinary, or a care- 
ful, rather, investigation? — A. Not the slightest; there was nothing 
in the world to cause anything else. 

Q. You spoke of certain orders, Major, that you gave the officer of 
the day relative to rescinding the passes and recalling the men to the 
garrison. Will you please state your reason for issuing these special 
orders. — A. My reasons were that whether this story be true or false 
it would probably be credited by the people of Brownsville as being 
true, and I feared for the safety of the men Avho went out either 
alone or by twos and threes or in small groups, and my order Avas given 
for the purpose of protecting the men. I might go back a little fur- 
ther and say that Mr. Evans reported to me at the time that for the 
last two nights or afternoons previous he had been annoyed by 
enlisted men congregating in the vicinity of his house; that they 
used foul and obscene language, and that it annoyed him a great 
deal. I told him that that part I could absolutelv stop, because I 
could put a guard over his house, if necessary, and, in a slight meas- 
ure, it was to relieve him from any annoyance of that kind that these 
patrols were sent out, although the main reason was to protect the 
men. 

Q. The reason, then, for the sending of these patrols mainly was 
for the purpose simply of notifying the men of the changed conditions 
as regards the passes; is that right? — A. It was, sir. That they 
should all be in garrison that night by 8 o'clock and not leave it. 

Q. It was not for any special reasons that you thought it was 
necessary for increased vigilance — these patrols were not considered 
in the light of being necessary for the protection of the garrison, or 
in regard to the safety of the garrison? 



230 

The Judge-Advocate. May it please the court, inasmuch as this 
witness is on the stand as a witness for the defense at present, the 
prosecution will have to object to questions that are so very leading 
in their nature. The witness is a most intelligent officer. 

Counsel for the Accused. I will change the question. 

Q. Was this notification of the men that the passes were rescinded 
after 8 p. m. the sole object of these patrols, Major? — A. It was to 
bring them all in, to see that they were in the garrison at that time. 

Q. What report, if any, did you receive, and when did you receive 
this report from the officer of the day as regards these patrols and in 
regard to your orders ? — A. I think it was about 9 o'clock in the even- 
ing that the officer of the day called at my house and stated that he 
had sent out the i^atrols an dthat they had turned back a good many 
of the men into the garrison and notified them to come in; that the 
last patrol had found no men at all ; he told me that he himself had 
gone around through a certain part of the town to see that the patrols 
were properh' performing their duty, and that he had found no en- 
listed men at all. I think that was about 9 o'clock in the evening. 

Q. That was the last report that he made to you that night relative 
to those patrols — these special orders you had given him? — A. Yes, 
sir; that was the last one. 

Q. From these reports. Major, were you satisfied that the orders 
given by you to the officer of the day were fully carried out, both in 
the spirit and in the letter ? — A. I was ; yes, sir. 

Q. Major, what orders, if any, were in force at Fort Brown, Tex., 
up to and including the 13th of August, 1906, which required the 
officer of the day to visit the guard and sentinels between midnight 
and reveille? — A. There were none. 

Q. What were the standing orders at Fort Brown, Tex., at this time 
regarding the inspection of guards and sentinels by the officer of the 
day? — A. Each sentinel should be inspected at least once while on 
post. 

Q. Other than this inspection of the sentinels on post by the officer 
of the day. what other orders were there in force at Fort Brown at 
this time, excepting those contained in the Guard Manual or other 
than those contained in the Guard Manual? — A. Well, there were 
certain special orders that each sentinel had. 

Q. That is, each different post? — A. Different posts. 

Q. I do not mean that. I mean as regards the officer of the clay — 
governing the performance of his duties. — A. I do not understand 
that. Please state it again. 

(The reporter read the three preceding questions and answers.) 

A. There was nothing outside of the Guard Manual that was given 
to the officer of the day ; that governed it entirely. 

Q. There were no orders, then, that forbade the officer of the day 
retiring before midnight? — A. What was that question? 

Q. There were no orders in force at Fort Brown at this time which 
forbade the officer of the day to retire before midnight? — A. No, sir. 

Q. There were no orders which forbade him to remove his clothing, 
or any part of it that he saw fit? — A. No, sir; no, sir; there was 
nothing of that sort. 

Q. Major, about what time or times did you see Captain Macklin 
on the night of August the 13th and 14th, 'before this alarm which 
occurred about midnioht that vou have heard and have testified to? — 



231 

A. I saw liiiu al>ont half past 5 — between half ])ast .") and (>— on the 
evening- of the i:Uh. about o'clock on that same evening, and about 
1.15 or l.;>0 on the morning of the 14th — al)out 1.1.") — -I don't know 
the exact time that I saw him then. 

Q. When you saw him at 1.15, that was after the shooting that you 
spoke of? — A. Yes. sir. 

Q. You did not see Captain ]Macklin during the progress of this 
shooting? — A. I did not; no, sir. 

Q. Major, when you first saAv him after the shooting — which you 
state was about 1.15 — what were the conditions under which you saw 
him then? — A. Captain Macklin came up to me and said, '* Major, I 
report. I have been asleep, and I do not know anything that has 
taken place." I think that is about what he said. 

Q. Did you give Captain ]Macklin any orders or instructions 
then? — A. 1 did. I told him to take command of his conijiany. 

Q. Where was his company then. Major? — A. His company was 
on the extreme right of the line — the line that I described in my di- 
rect examination by the prosecution as extending along that wall to 
the north of the barracks and separating the post from the tow^n. 

Q. Did you in any way reprimand Captain Macklin for not having 
appeared earlier, or during the shooting? — A. I did not, sir. 

Q. As officer of the day, in case of alarm, he should have been there, 
should he not ? — A. He should have been: yes, sir. 

Q. Then, why — will you j^lease explain why you did not reprimand 
him or censure him in any way? — A. He told me that he had been 
asleep. I believed Captain Macklin ; he had all appearance of a man 
who had just aAvakened from a heavy sleep. Before this I had felt 
a good deal of uneasiness about him. I thought that during the firing 
he might have gone into the town to see what it Avas and that he might 
have been injured. I Avas therefore very glad to see him when he 
did report : my mind was relieved a great deal to know that nothing- 
had happened to him. 

Q. ^lajor, you have stated that the special orders that you gave 
Captain jVIacklin as officer of the day on the 13th of August were 
carried out to your entire satisfaction; you have also stated that you 
gave him certain orders after he reported to you. or when he reported 
to you, after the shooting Avhich occurred about midnight. Were 
those latest orders that you gave him properly carried out ? — A. They 
were, sir. 

Q. To your entire satisfaction? — A. Yes. sir. 

Q. jNIajor, I believe that you yourself lately appeared before a 
court-martial under certain charges in reference to this same atfair 
at Fort Brown ? Is that correct ? — A. Yes, sir. 

Q. And was or Avas not a portion of one of the specifications con- 
tained in the charges against you in reference to charging you AA'ith 
neglect to give orders to the officer of the day to exercise special vigi- 
lance on the night of August the 13th-14th ? 

The Ji'DGE- Advocate. ( )ne moment. Has the counsel got a copy 
of the general order pul)lishing the result of that trial here, Avhich in- 
cludes that statement ? 

Counsel for the Accused. No, sir. 

(The reporter read the question.) 

A. It Avas. 

Q. Major, Avhat Avas the finding of the court as regards this par- 



232 

ticular allegation? — A. That particular allegation was " Not guilty," 
as near as I can recall it. That was involved a good deal there, but 
that particular one was " Not guilty." 

The Judge- Advocate. There is no objection on the part of the 
prosecution to handing Major Penrose a copy of the order publishing 
the charge and allowing him to refresh his memorA^ on the subject. 
This order has not the official stamp of the War Department, but is 
accepted b}^ the defense and the prosecution as being correct. 

(To wdiicli remarks of the judge-advocate the counsel for the de- 
fense nodded in the affirmative.) 

A. I would like to change that answer, may it please the court, a 
little bit, after looking this over, on that particular portion of fail- 
ing to give Captain Macklin any specific orders to make any inspec- 
tion after midnight of the guard. The court substituted words 
which found me guilty of that, but attaches no criminalty thereto — 
" Special vigilance " is omitted. 

(By request of the defense the reporter read the last three questions 
and answers.) 

Q. The question, Major, Avas not in regard to any specific or special 
orders which you may have given CajDtain Macklin in regard to in- 
spection between midnight and reveille, but as to any orders a^ou gaA^e 
him to exercise special vigilance on this night of August 13-14. That 
was a part of your specification? — A. Yes, sir. I was found not 
guilty on that. 

Q. And you haA^e ahvays accepted full responsibility as to not 
giving Captain Macklin any such orders? Is that correct? — A. I 
have ahvays, sir. 

Q. Why have you ? — A. There were no reasons for it at all apj)ar- 
ent in any Avay, shape, or form. 

Q. Do you remember Avhen Captain Macklin Avas relicA^ed as officer 
of the day on this particular tour. Major, of August the 13th-14th? — 
A. I think it Avas late on the morning of the 14th. 

Q. Did he report to you as old officer of the day? — A. He did. 

Q. Did you think it necessary to comment unfaA^orably upon 
Captain Macklin's performance of his duties— that is. to him Avhen 
he reported to you as old officer of the day ? — A. I did not. 

Q. So far as you knoAv, as commanding officer of Fort BroAvn, how 
did Captain Macklin perform his duties as officer of the day during 
this tour of August 13-14, 1906? — A. They were performed to my 
entire satisfaction, sir. I regretted that he had slept through that 
particular period, but I could not attach any neglect of duty to it. 

Q. Then, either during the time that Captain Macklin Avas acting 
as officer of the day at this particular time, or Avhen he was relieved 
by the new officer of the day some time during the morning of Au- 
gust the 14th, you did not think it was incumbent upon you as com- 
manding officer to reprimand or censure him in auA^ way; is that 
correct ?^ — A. I did not. 

Q. Major, how long haA'e you known Captain Macklin? — A. 1 
stated just a while ago that I haA^e known him nearly tAventy years — I 
think it is twenty years this fall. 

Q. You have had ample opportunity to observe him in the per- 
formance of his duties? — A. I have. 

Q. From your knowledge and observation of Captain Macklin, how 
does he, as a rule, perform his military duties — in what manner? — 



233 

A. Captain Macklin I consider a very excellent officer, and he is a 
man who al\A'ays ])erfornis his duty with a great deal of care and a 
great deal of pains; and he is a particularly careful company com- 
mander in the management of his company — and, in fact, on all duties 
I have always found Captain Macklin excellent. 

Q. Major, have you ever noticed him especially when acting as 
officer of the day? — A. Yes. I have: on several occasions when Cap- 
tain Macklin has been officer of the day. and reporting off, he has re- 
ported to me that he had visited the guard after midnight, and it was 
so rejjorted on the guard report. This is rather unusual to me, how- 
ever, because very few officers in my experience ever visit the guard 
after midnight. 

Q. Aside from observing Captain Macklin in his military capacity, 
yon have observed him also as an individual? — A. Yes, sir. 

Q. As regards frankness, how do you classify Captain Macklin? — 
A. I w^ould say that Captain Macklin is a man that is absolutely 
frank ; he has always impressed me particularly that way, ever since 
I have known him. 

Q. Major, on the morning of the 14th of August, were you — as com- 
manding officer at Fort Brown, Tex., when you relieved Captain 
Macklin as old officer of the day — were you thoroughly satisfied with 
the manner in which he performed his duties as officer of the day? — 
A. As I stated before. I regretted that he happened to sleep through 
this hour or more, but I could not think and I do not think it was 
neglect of dut}^ on his part; it was an accident that might befall any 
of us or happen at any time. • 

Q. Then, his statement to you that he had been asleep and simply 
failed to wake up, or to be properly awakened, during this shooting, 
satisfied you? — A. It did, sir. 

Cross-examination b}'^ the Judge-Advocate : 

Q. Now, with reference to Mrs. Evans's description of her alleged 
assailant, considering all the circumstances, do you think that she, a 
woman, and frightened at the time, could very well give a detailed 
description of the man who attempted to throw her down? — A. No; 
I do not. 

Q. So that her description was not more meager than might have 
been expected under the circumstances? — A. No. I presume that it 
might be taken that way. 

Q. The night of August the 12th, at the particular time when this 
alleged attempt to assault occurred, was dark and verj'^ similar to the 
night of August the 13th. was it not — there was no moonlight ? — 
A. No; there was no moonlight. I think the two nights, as near as 
I can recall it, were about the same — although I had no reason to fix 
the night particularly on my mind. 

Q. But her description was as full as she could be expected to 
give under the circumstances, was it not? — A. Well, she undoubtedly 
gave as good a description as she could to her husband, and he gave 
it to me. 

Q. Now, you stated that one of the reasons whj- you kept the men 
in the post that night and ordered those who were out to return, 
was because it was your belief that whether this report of the alleged 
assault was true or not the effect on the townspeople would be prac- 
tically the same? — A. I did. 



234 

Q. You have served in the South before, have you, ]Major Pen- 
rose ? — A. No ; I have never served in the South — that is, unless you 
call Arizona south. I do not consider that south in the sense we are 
using it now at all. 

Q. No; I do not. either. But you knew at that time as to the 
effect of any such story or rumor in a small southern city, did 
you not — the effect such a story would have upon the populace? — 
A. I realized that. But I did not think it was limited to a small 
southern city at all. I think it would have been apt to have caused 
feeling anywhere. 

Q. This Mrs. Evans, was she not, so far as your knowledge goes — 
or so far as your knowledge went at that time — an eminently re- 
spectable Avoman? — A.I do not know anything to the contrary. I 
had never heard of Mrs. Evans before that afternoon, and I never 
saw her until she appeared at Fort Sam Houston during my trial. 

Q. Her husband, however, you saw on the evening of August the 
13th ?— A. Yes, sir. 

Q. About 5.30 p. m.? — A. Yes. He came into the post with 
Mayor Combe. 

Q. His appearance was what? Can you describe him? — A. I 
thought that the man was absolutely frank and honest in his state- 
ments, and I thought that — I was convinced that he was telling 
me exactly what his wife told him. 

Q. But you believed that the man could not have been a negro 
soldier? — A. I never believed it. I do not believe it to this day. 

Q. Mr. Evans's appearance was that of an ordinary, prosperous 
business man, or was it not? — A. Yes — yes — he had all the appear- 
ance of being a prosperous man. 

Q. He looked like a reputable citizen, so far as your knowledge 
went? — A. He certainly did. 

Q. Now, when you gave Captain Macklin the order to send not less 
than three patrols into the town, and authorized him to go himself 
if he thought it advisable or necessary, did you at that time give 
him any special orders with reference to any particular precautions 
to be taken with reference to the Evans house, or the vicinity of the 
Evans house? — A. No. 

Q. So the main idea, then, was just to get the men in who were 
already out? — A. That was it — to get the men into the post and 
• keep them in the post. 

Q. Did you give Captain Macklin any special orders directing a 
change in orders of sentinel No. 2? — A. No, sir. 

Q. You had a great deal of confidence in Captain Macklin 's ability 
as an officer, did you not ? — A. I do not understand your question. 

Q. I say you had a great deal of confidence in Captain Macklin's 
ability as an officer, did you not ? — A. I thought you said I had not. 

Q. No. sir; I said you had a great deal of confidence in Captain 
Macklin's ability as an officer, did you not? — A. I had, and I hav^e. 

Q. You had known him for a considerable length of time and 
realized that he was an officer of mature judgment and experience, 
did you not? — A. Yes, sir. 

Counsel for the Accused. Let me hear the answer to the previous 
question. 



235 
The reporter read the question and answer, as follow 



Q. You had a great (leal of coufidence in Captain Macklin's ability as an offi- 
cer, did you not? — A. I had, and I have. 

Q. That being the case, even though the circumstances were rather 
unusual on the night of August the 13tli. you did not feel it necessary 
to go into details and give him any orders specifically directing vigi- 
lance on his part or requiring him to do anything iniusual other than 
to send these patrols uptown? — A. I did not. I did not consider 
that any other orders were necessary at all. 

Q. You referred everything to his judgment? — A. Yes; outside of 
giving him instructions to send the patrols. 

Q. Who, next to the conmianding officer, is primarily responsible 
for the safety of the garrison in case of a sudden alarm or attack? — 
A. The officer of the day. 

Q. And it is ordinarily expected that he will turn out promptly at 
the first alarm and take such measures as are necessary to preserve 
public property ? — A. Yes. 

Q. And to guard the lives of those in the garrison? — A. Yes, sir. 

Q. Now, when an officer of long or considerable experience marches 
on as officer of the day, even though conditions be somewhat unusual, 
it has been your custom as commanding officer, has it not, to allow 
him to exercise his initiative to a considerable degree and not to 
hamper him with a lot of orders or with such orders as you might 
give to a 3'oungster of a few months' service? — A. That is true. 
That is very largely done, I think, generally. 

Q. And so it depends a good deal upon the officer's experience and 
his character, I believe, as to the niunber of special orders that would 
be given him under circumstances other than the ordinar}^ circum- 
stances — is that not correct, sir? — A. No. sir. An officer — a com- 
manding officer — if he has anything out of the ordinary, would give 
special instructions to any officer of the day. At this time I wish it 
distinctly understood there was nothing to indicate in the slightest 
way that there was anything unusual when Captain Macklin marched 
on as officer of the day. 

Q. Major Penrose, I want to just repeat that question and ask you 
whether it doesn't make considerable difference, even inider unusual 
circumstances, whether the officer of the day is a man of experience 
and tried ability or whether he is a youngster inexperienced and 
unknoAvn? — -A. Yes, sir; it does. 

Q. And woidd not you, as commanding officer, make a difference in 
the way in which you issued the orders — the completeness of the 
orders and extent of them — in these two cases? — A. If the conditions 
were different, anything warranted it, I would. A young officer who 
had been performing his guard duty satisfactorily and properly 
wotdd require no such instructions. 

Q. But an untried officer you would, under unusual circum- 
stances? — A. That is a different matter. 

Q. You would give him more particular orders, too, wouldn't you ? — 
A. As I said before, under unusual circumstances I would probably 
give more explicit instructions to any officer, although an old officer, 
who had more experience, would not require the amount of special 
instructions that an inexperienced officer would. 

Q. Now, on the 13th of August you had perfect confidence in Cap- 



236 

tain Macklin's ability to meet any exigencies that might arise? — A. I 
had. 

Q. You had known him for twenty years or more? — A. About 
twenty years. 

Q. And you had perfect confidence in his abilitj^ to handle any- 
thing that might turn up, did you not ? — A. Yes, sir. 

Q. Major, I notice you wear glasses. Is your eyesight normal 
when aided by the glasses or not? — A. Yes, sir; it is normal with the 
glasses. 

Q. You never had any trouble with night blindness or anything of 
that kind? — A. No, sir; not at all. 

Q. Now, on August the 13th you stated, I believe, that it was neces- 
sary to get rather close to buildings even to distinguish them. Now, 
as a matter of fact, could you not, from the front of one set of officers' 
quarters see outlined against the sky, which was starlit, the quarters 
on either side? — A. Yes; I think you could. The officers' quarters 
you refer to? 

Q. Yes? — A. Yes; I think you could. ■ 

Q. They are only about 20 yards apart, are they not?— A. They 
are only a short distance apart. 

Q. And all the officers' quarters are considerably higher and con- 
siderably larger than that small building at the west end of the line 
where Mr. Matlock lived, marked " B " on the map? — A. Yes; they 
are. That one marked " B " is only one story in height, as I recall — 
it is a smaller building than the others; it is a single building. 

Q. Now, could not one stand in front of quarters 11 and 12, for 
instance, and facing the quarters and looking first to the right and 
then to the left, distinguish a difference in size between this small 
building marked " B " and quarters 9 and 10? — A. I would like to 
have that question repeated, please. I do not understand what you 
mean. 

(The reporter read the question.) 

A. Well, I should think so, but I do not know whether h.e could 
or not. I think, speaking for myself, that probably I could have, 
but considering the night there may have been some doubt about it. 

Q. But that is your best judgment? — A. I don't know. 

Q. Your best judgment is that^ — —A. Well, my best judgment is I 
don't know, because I was not there to try to see — I can not recall now 
of looking to the right or left when I left my quarters; whether I 
could have distinguished the quarters next to mine or not, I don't 
know — I might have done so. 

Q. But judging from the clearness — or from the indistinctness with 
which objects appeared that night, what is your best judgment on 
the subject? — A. Well, I do not know, I would not like to state 
whether I could have seen one of those buildings ; I might have done 
so, but I am not at all sure about it. 

Q. Major, when this shooting began you were lying in bed, I believe 
you stated? — A. Yes, sir. 

Q. Had undressed and gone to bed? — A. I had undressed and re- 
tired. 

Q. You had not gone to sleep, however? — A. I was awake; I had 
not gone to sleep. 

Q. Had there been any special — or was there any special cause for 
your remaining awake? Were you worried or apprehensive or any- 



237 

thing of the kind, and therefore hiy there ^vithout jroing to sleep? — 
A. No; not at alL I had wondered, of course, ihiring the evening 
what I might be able to do about the Evans matter — what investiga- 
tion it was possible for me to make. I had talked that over with 
my wife. I think, and I believe with Lieutenant Orier. who was there. 
But that was not sufficient to keep me awake at all ; it was simply that 
I had not gone to sleep at that time. 

Q. How long had you been in bed ? — A. Probably a half or three- 
quarters of an hour; I do not know exactly Avhat time I retired. 

Q. So. if the sentinel on i)ost No. 3 said he saw you sitting down- 
stairs at that time, or just prior to the shooting, it must have been 
on some previous round of his. if he actually saw you? — A. No; he 
could not have seen me. We were sitting on the porch — I thing this 
same lantern might have been put in the parlor — it was very warm 
indeed at that time, and Ave never lighted a lamp excepting a few 
minutes after the nuiil came in, about 7 o'clock, I should judge, to 
glance over the letters. 

. Q. Now, this lantern vou stated Avas in the front room upstairs, I 
think?— A. Yes. 

Q. Did you habitually keep that burning all night? — A. Yes, sir. 

Q. You spoke about the usual breeze bloAving that night. Now, 
is it not a fact that ordinarily doAvn there at that time of the year 
a more or less cool breeze Avould spring \\p about sundoAvn and blow 
for about two or three hours, and then as a general thing die out 
again? — A. No, sir; generally that breeze Avould last until daylight. 

Q. Do you recollect that the wind was blowing unusually strong 
that night?— A. No; I do not recall that. 

Q. Do you recollect any wind at all that night? — A. I do not knoAV 
that I do. that particular night ; but probably there was the usual 
breeze, such as we had there every night. 

Q. Now. Major, you stated that Captain Macklin's appearance 
Avhen he finally reported to you about 1.15 or 1.30 o'clock on the morn- 
ing of the 14th was that of a man who had just aAvakened from a 
sound sleep. Will you please describe his appearance a little further, 
if you can? — A. Well that is rather a hard matter to do. He came 
to me. his eyes haA'ing the appearance of just having awakened — I 
do not know that I can tell the expression that Ave so frequently see 
on one when avc realize he has just wakened up. 

Q. OtherAvise liis condition Avas normal ? — A. His expression, whole 
demeanor, and CA^ery thing indicated to me that he had just aAvakened 
and come OA^er there. 

Q. "\Alien Mayor Combe spoke to you Avitli reference to the Evans 
incident, as I belicA^e you haA^e stated, can you recall approximately 
the language he used — Avhat he told you? — A. Alayor Combe? 

Q. Mayor Combe; yes. — A. Mayor Combe had A'^ery little to say 
about the Evan^y incident. He introduced me to 'Sir. Evans — I had 
never met him before — and Mr. EA'ans did the principal amount of 
talking. 

Q. But did not Mayor Combe state to you something to the effect 
that the feeling doAvntoAvn Avas rather high OA-er this matter, and 
that he could not ansAver for the safety of indlA'idual soldiers found 
downtoAvn — something to that effect? — A. He did not. That Avas 
his testimony that vou are quoting now before my court. Mayor 
Combe, after Mr. Evans got through telling me his tale, called me 
1G43— 07 M IG 



238 

to one side — we walked off 15 or 20 feet, maybe more, toward the 
hospital — and he said to me, " Major, I am airaid this is going to 
create a great deal of feeling; and don't you think it would be best 
to keep your men in to-night? " Those were Mayor Combe's exact 
words and the words I testified to before my court. 

Q. And what did you say in reply, Major? — A. I told him I was 
afraid it would create feeling; that that naturally would cause feel- 
ing, and I would send out at once and call my men in and keep 
them in. 

Q. You did not give the officer of the day any special orders rela- 
tive to keeping the men in after they were once brought in? — -A. I 
gave him orders that the men would not be allowed out after 8 o'clock. 

Q. You, however, did not believe that any colored soldier had 
actually attempted to assault Mrs. Evans ? — A. No, sir ; I did not. 

Q. But 3"ou did believe Mayor Combe's statement that the incident, 
or the alleged incident, might cause trouble ? — A. Yes, yes ; I thought 
that very probable. 

By the Court : 

Q. I would like to ask Major Penrose to read the specification and 

the finding, on the specification in regard to his failure to give any 

special orders to Captain Macklin, at his trial. — A. (The witness 

read from the findings of the Penrose court-martial the following:) 

Specification II. In that Maj. Charles W. Penrose, Twenty-fifth U. S. 
Infantry, being aware of the feeling of resentment in his command toward 
citizens of Brownsville as a result of assaults upon certain individuals of the 
command, and having been notified by a Mr. Evans, of Brownsville, about 5 
p. m. August 13, 1906, of an attack upon his wife by a soldier of the command, 
and knowing of the inflamed feeling existing in the town toward the soldiers 
as a result thereof, did nevertheless fail to give any orders to Capt. E. A. 
Macklin, Twenty-fifth Infantry, officer of the day, requiring special vigilance 
on his part or that of the guard ; or to make frequent inspections or any in- 
spections during the night after 12 o'clock ; and did wholly fail and neglect 
to take or order sufficient measures or precautions to hold at the post the men 
at his command, or in any manner to watch, restrain, or discipline said men ; 
by reason of which failure certain men of his command, to the number of about 
12 or more, were enabled to assemble and did assemble, armed with rifles, and 
did proceed to the town of Brownsville. Tex., and did then and there shoot and 
wound and kill certain citizens thereof. 

This at Fort Brown and Brownsville, Tex., August 13 and 14, 1906. 

To which charge and specifications the accused pleaded " Not guilty." 

FINDINGS. 

Of the first specification, " Not guilty." 

Of the second specification, " Guilty, except the words ' being aware of the 
feeling of resentment in his command toward citizens of Bi'ownsville as a 
result of assaults upon certain individuals of the command and.' and the word 
' inflamed,' and the words ' special vigilance on his part or that of the guard 
or to make,' and the words ' and did wholly fail and neglect to take or order 
sufficient measures or precautions to hold at the post the men of his command, 
or in any manner to watch, restrain, or discipline said men, by reason of which 
failure,' substituting for the words ' by reason of which failure ' the words 
' after which,' and except the words ' to the number of 12 or more were enabled 
to assemble and.' and of the excepted words ' not guilty,' and of the substi- 
tuted words ' guilty.' " 

So that the second specification as amended shall read as follows : 

Specification II. In that Maj. Charles W. Penrose, Twenty-fifth U. S. Infan- 
try, having been notified by a Mr. Evans, of Brownsville, about 5 p. m. August 
13, 1906, of an attack upon his wife by a soldier of the command, and knowing 
of the feeling existing in the town toward the soldiers as a result thereof, did 



239 

uevertlieless fail to give auy orders to Capt. E. A. Maclilin, Twenty-fifth 
Infantry, officer of the clay, requiring frequent inspections, or any inspections, 
duriiif,' tlie uiglit after 12 o'clock, after which certain men of his command did 
assemble, armed with rifles, and did proceed to the town of Brownsville, Tex., 
and did then and there shoot and wound and kill certain citizens thereof. This 
at Fort Brown and Brownsville. Tex., August lo and 14. lOOG. 
And the court attaches no criminality thereto on his part. 

(AVitness excused.) 

Col. Ealph W. Hoyt, Twenty-fifth Infantry, a witness for the 
defense, was duly sworn and testified as follows: 

Direct examination by the Judge- Advocate : 

Q. Colonel, will you please state your name. rank, and present 
station and duty ? — X. Ralph W. Hoyt ; colonel Twenty-fifth Infan- 
try ; station at present at Fort Sam Houston, Tex., commanding the 
Department of Texas. 

Q. Do you know the accused ? If so, please state who he is. — A. I 
do. Capt. Edgar A. Macklin, Twenty-fifth Infantry. 

Questions b}^ the Accused: 

Q. Colonel Hovt, how long have you been in the military service? — 
A. Since 1868. 

Q. Will you please tell the court in what organizations this service 
has been ? — A. As a cadet at West Point ; in the Eleventh Infantry ; 
in the Tenth Infantry ; in the Fourteenth Infantry ; detailed as Adju- 
tant-General in the Adjutant-General's DejDartment, and in the 
Twenty-fifth Infantry. 

Q. How long. Colonel, have vou been in command of the Twenty- 
fifth Infantry?— A. Since May. 1904. 

Q. Colonel, how long have you known Captain Macklin ?— A. Since 
1878. 

Q. Has he ever served with you or under your command ? — A. He 
has, at different times. We served together; he was in the garrison 
when he was a boy, with his people; afterwards in Manila, and at 
Fort Niobrara, Nebr. 

Q. At Fort Niobrara, Nebr., j'ou were the commanding officer? — 
A. Yes. sir. 

Q. And Captain Macklin at that time was a line officer under your 
command ? — A. He was. 

Q. Colonel, have you or have you not observed Captain Macklin 
sufficiently in his official capacity to enable you to form an estimate 
of his efficiency as an officer? — A. I have. 

Q. Will you please tell the court what is this estimation that you 
have formed of Captain Macklin in his official capacity. — A. Captain 
Macklin is a good soldier, he is a good company commander; his 
mind is open to instruction : he is a willing officer, not captious ; and 
he fully appreciates the responsibility of his office. 

Q. Colonel, how do you classify him as to being an efficient or an 
inefficient officer? — A. As a ver^^ efficient officer. 

Q. Captain Macklin has reported to you as officer of the day 
numerous times, has he not, sir? — A. A great many times. 

Q. And he has been relieved by you from duty as old officer of the 
day? — A. He has. 

Q. Have you ever had any occasion or cau^^e to reprimand or cen- 



240 

sure Captain Macklin for any neglect on his part in the performance 
of his duties as officer of the day t — A. I have never. 

The i^rosecution declined to cross-examine the witness. 

(Excused.) 

The accused, having no further testimony to offer, made the follow- 
ing verbal statement in his defense : 

Associate Couxsel for the Accused. May it please the court, 
Capt. Edgar A. Macklin. of the Twenty-fifth Infantry, having been 
regularly detailed, duly entered upon the duty of officer of the day 
at Fort Brown, Tex., on August 13, 1906. In the performance of that 
duty he was governed by the regulations found in the authorized 
Manual of Guard Duty and by such general and special orders as were 
existent at the post at Fort Brown, Tex., on that date. He was gov- 
erned further by the special instructions that were issued to him by 
the commanding officer about 5.30 p. m. on August the 13th. It 
appears from the evidence in this case that, as was his usual custom, 
he faithfully and conscientiously performed the duties of officer of 
the day, but that an alarm had sounded at Fort Brown shortly after 
midnight on that date and he failed to respond to that alarm until 
about 1 or 1.15 o'clock a. m. on the morning of August the 14th. The 
specification recites that he had retired to his quarters, and the ques- 
tion naturally arises, was he justified therein. May it please the 
court, he was justified by the custom of the service, in the absence of 
any order or instructions, in the absence of any condition which mod- 
ified that custom. Xow, there has been conveyed inferentially to 
this court an ex parte idea that the conditions existent at the post of 
Fort Brown on the evening of August the 13th did modify that cus- 
tom. From August the 14th until the present time Captain Macklin 
has been the subject of numerous reports — a series of reports — -which 
in their abortive fancy charged him with being the white leader of a 
mob of negro soldiers that shot up the town of Brownsville. These 
passed by eas}^ stages to the more recent report that Captain Mack- 
lin was a member of a poker party at Crixell's or Tillman's saloon 
while his comrades were hastening to an alarm at Fort Brown, and 
l)rogressed by the same easy stages from additional charges and speci- 
fications to the present single charge and specification, reciting that 
numerous assaults had been committed upon members of the com- 
mand at Fort Brown, mentioning the various allegations of the re- 
sentment and inflamed and irritated feelings of the people, and 
alleged that in consequence thereof Captain Macklin failed to exer- 
cise that special vigilance that was incumbent upon him in conse- 
quence of that feeling and these assaults; an additional charge and 
specification embodied in legal phraseology, one of the most slander- 
ous of these reports previously referred to, and that additional charge 
and specification was directly afterwards withdrawm " in toto; " and, 
further, against the commanding officer of this accused officer there 
was preferred a charge and specification substantially the same as the 
original specification preferred against Captain Macklin; it men- 
tioned the same assault, it referred to the same irritated and inflamed 
feeling, and it charged the commanding officer with having failed to 
give orders to Captain INIacklin, officer of the day, to exercise special 
vigilance. Xow, under these expressed allegations contained in the 
specification upon which he was arraigned and tried, the opportunity 
was presented to that officer to introduce before his court a mass of 



241 

evidence which, while establishing his whole responsibility in the 
matter, and while establishing that while he failed to give Captain 
Macklin any special orders, it established beyond the shadow of a 
doubt that he issued every order that that night required, and so far 
as human foresight could anticipate, every order that the occasion 
required when no special vigilance was incumbent upon him or any 
other officer of that garrison. 

And, now. may it please the court, acting upon our knowledge of 
the history of this case, and acting upon our presumed knowledge of 
the proper form of procedure before a military court, we have for- 
borne to introduce any evidence that did not bear directly upon an 
expressed allegation upon which the accused officer stands arraigned, 
and we have such full confidence in the membership of this court we 
have felt that it would be guided by no inferences, and we have felt 
it was sufficient to trust them with the facts and with the facts alone, 
and we knew that they could apply cold logic to those facts. This 
present specification goes on to say that it was " impossible to arouse " 
the officer of the day '" or bring him forth." In support of that 
allegation the prosecution in this cause has introduced four witnesses: 
Private Rogers. Private Hairston, Sergeant Taliaferro, and Corporal 
Madison. At the outset I want to say with respect to the testimony 
of Private Rogers, we clothe that testimony with a mantle of charity 
and desire to discuss it no further. Private Hairston testified that 
he went not to the quarters occupied by Captain Macklin, but to the 
adjoining vacant set of quarters. He has further testified as to his 
own state of mind that night, to his own confusion, and he has ex- 
pressed his doubt with respect to details upon which a competent 
sentinel would have been accurate, and we maintain, may it please 
the court, that all the details he heard at that vacant set of quarters 
were covered by his whole testimony in this case. Sergeant Talia- 
ferro also testified that he went to the vacant set of quarters ; he testi- 
fied that he was mistaken about that set of quarters, that he thought 
they were the quarters actually occupied b}'^ Captain Macklin; and. 
from a full and fair view of his entire testimonj", taken in connection 
with the testimony of other Avitnesses, we maintain that he was mis- 
taken as to the house he went to. He did go to the house occupied by 
Lieutenant Lawrason, and it may be. may it please the court, that 
Corporal Madison, although he did not raise the cover in the back 
room downstairs, by his clear and stentorian tones did succeed in 
arousing Captain Macklin shortly before 1 o'clock — ^but we have tried 
to show that neither one of those soldiers carried out fully the order 
that was given to them, and we have tried to show that there was no 
attempt to shift responsibility by the officer to his subordinates; if 
that man ever had carried out his orders, he would haA^e found it no 
more impossible for him than it was for Corporal Burdett to ac- 
tualh' arouse and bring Captain Macklin forth. 

We have respected the belief of Captain Macklin that his defense 
has needed the protection of no barriers raised b}' quibbles of the law, 
and we have respected further his expressed wish that there be made 
to this court no appeals to vour sympathy for any sufferings he has 
undergone, both mental and phvsical. but on my own responsibility 
I desire to again call the attention of the court to the fact that from 
a period of time stretching from August the 13th to the present mo- 



242 

ment he has been subjected to these reports — so slanderous and so foul 
that they besmirch their own authors — and the only relief he has had 
from these reports has been the consciousness of their falsity. He 
had had no opportunity for a full hearing or trial on any of these 
reports ; and had the originators of the charges against Captain Mack- 
lin accepted his statement, or had they accepted the unbiased opinion 
of an officer, a fair minded and disinterested man, ^Yho was put in a 
position to know the facts, these charges would have never been 
brought to trial. 

But if you, like that disinterested officer, believe in the sincerit}^ of 
this accused, and if you believe in the corroborating voices of most 
creditable witnesses who were presented to this court, we ask you to 
express that belief in complete nullification of the suggestions that 
are contained in this specification. We ask no compromise on that 
proposition, and if you have that belief, we ask for the benefit of it 
expressed in the form — which is the only form known to the law — of 
a verdict of not guilty. 

Counsel for the Accused. May it please the court, the defense 
has the honor to announce that its case is presented and closed. We 
have nothing further to offer. 

The judge-advocate replied as follows: 

Mr. President and Members of the Court: After listening to the 
eloquent remarks of the associate counsel for the defense, I feel con- 
siderable hesitancy in arising to reply thereto — a hesitancy even 
greater than usual — -for I realize my limitations as a speaker; but, 
inasmuch as this case has already covered a period of two weeks or 
more, and the record thereof covers more than half a thousand pages 
of typewritten matter, I feel that a brief review of -some of the facts 
in the case and an attempt to present to you the view point of the 
prosecution will not be amiss. 

First, gentlemen, I ask you to picture to 3^ourself the situation 
existing in Fort Brown on the night of August the 13th, 1906. There 
w^as a little garrisoned post, garrisoned by three companies of colored 
soldiers; across the way lay the little city of Brownsville. That 
night a belief w^as strong in the town that one of the soldiers in this 
command had attempted to assault a white woman, the wife of a 
respectable citizen. The mayor of the town had gone to the com- 
manding officer about 5.30 o'clock that evening, in company with the 
husband of this woman, and had reported the facts to the command- 
ing officer, and had advised him to keep his men in the garrison that 
night for fear of possible trouble to individuals or small groups of 
the men. The commanding officer expressed his disbelief in the story 
that this woman had actually been assaidted, but, realizing that the 
feeling dowmtown would be the same whether her story were true or 
not, he acquiesced in the mayor's suggestion and soon afterwards 
issued orders to the officer of the day to send out patrols, bring in the 
men, and keep them in after 8 o'clock. The same order was trans- 
mitted through the adjutant to the other company commanders. By 
8 o'clock all men found downtown had been rounded up and were in 
the garrison. The officer of the day himself went uptown between 
8 and 8.30 o'clock and made an extended patrol, going about fifteen 
blocks, and returned to the garrison, having satisfied himself that all 
was quiet downtow^n and that no soldiers were out. After his return 
he spent most of the time in his quarters prior to the call to quarters 



243 

;nid taps, sitting- there in company with a young officer of his regiment, 
during which time Captain Macklin drank a bottle of beer, read the 
paper, and had a general conversation with this young officer. Soon 
after call to quarters he went out and received the reports of the non- 
commissioned officers in charge of quarters, visited the guardhouse, 
came down and rescued the children from a vicious dog, went back 
and inspected the sentinel on post No. 2, and then about 11 or half 
])ast 11 or 11.35 returned to his quarters. He sat up for a while — 
eight or ten minutes^ — ^reading the headlines of a newspaper, drank 
a bottle of beer and went to bed, and very soon jDassed into dream- 
land. About midnight a couple of pistol shots were heard, followed 
by a fusillade of rifle shots, apparently taking place just outside of 
'the garrison, in the road in rear of B and C Companies' barracks, a 
distance of possibly 220 yards from Captain Macklin's quarters. This 
shooting continued for six or eight or ten minutes, and was confined 
practically entirely to the Cowan alley, between the garrison road and 
Twelfth street, or within a block of either side. The shooting had 
barely Ix^giin when the commanding officer of the post, who was lying 
aAvake on his bed. jumped out. hurriedly dressed, ran through the 
front door, calling upon the trumpeter of the guard to sound the call 
to arms. The trumpeter very soon afterwards sounded the call, 
which was taken up by the other trumpeters, four or five in number, 
near their respective company barracks. This sounding of the bugles 
was kept up for from two or three to five minutes, according to the 
testimony of various witnesses. During this time the shooting was 
practically continuous — pistol and rifle fire. As soon as possible after 
the alarm was given the sergeant of the guard sent Corporal Burdett 
and two men to respond to the call of Private Howard, the sentinel 
on Xo. 2 post, who had called the guard and fired his piece in the 
early part of the shooting. He also sent Private Rogers, a private of 
Captain Macklin's company, with orders to go to Captain Macklin's 
quarters and awaken him. This man started down and, according to 
his story, crossed in rear of Major Penrose, as the latter was running 
across the parade, and went to Captain Macklin's quarters. He 
described very minutely what he did. but as to the value of his testi- 
mony the court is the best judge — he was put on the stand here, he 
was an ignorant man, and the court can judge better as to the truth 
of his statements than I can tell. 

The next messenger of whom we have any knoAvledge Avas Corporal 
Madison, of Company C — a tried noncommissioned officer of long 
exjierience, who was sent by Lieutenant Grier (by direction of the 
connnanding officer) to find Captain Macklin. He Avas especially 
selected for this because he Avas a noncommissioned offit:er upon Avhom 
all dependence could be placed. Upon returning he reported to 
Lieutenant Grier (on p. 41 of the record) that he had found Cap- 
tain iNIacklin's saber by the front door, had gone in doAvnstairs, 
had pounded and called Captain Macklin's name, but had receiA'ed 
no reply; he stated that he did not go upstairs. This report of 
his, made to Lieutenant Grier upon his return, Avas corroborated by 
Corporal Madison's oAvn testimony upon the stand. He had been 
previously to Captain Macklin's quarters a number of times, and 
that he could be mistaken in those quarters is not believable. He 
it was, you will remember, Avho stated that he pounded so loudly that 
it seemed to him that if an\'one were in that house downstairs he 



244 

must have been in a trance not to awaken; that he made a very 
great deal of noise. The next messenger, one who came about the 
same time as Corporal Madison — possibly only a few moments later, 
but who left Major Penrose while there were still a few stray shots 
being fired in the town, as appears in ]\Iajor Penrose's testimony on 
page 13 — was Sergeant Taliaferro. Although Sergeant Taliaferro 
was more or less excited at the time, there is no doubt about that, 
and was unfamiliar with the officers' quarters, he was, nevertheless, 
certain that he went to quarters Xo. 12 and later to quarters No. 11. 
From his description of the construction of the stairways he could 
not have gone^to quarters 9 and 10, though from his description of 
the lights and the fact that he recollected nothing abnormal aliout 
the quarters, and, therefore, concluded that they were furnished, 
makes it seem possible that he may have gone there. The fact, 
however, that the interior construction of the houses Nos. 11 and 12 
differs so materially from that of quarters Nos. 9 and 10, and the 
fact that Sergeant Taliaferro's statements are so positive as to where 
he went makes it seem as though he must have gone to quarters 
Nos. 11 and 12 — but in his excitement he did not pay attention to 
details sufficiently to enable him to state just exactly as to what he 
saw and how they were furnished. There Avere no lights in quar- 
ters 7 and 8, the next set of quarters in which the stairways ran 
parallel to the hall, and the same way as they were in quarters 
11 and 12; it seems hardly probable that even in his excitement 
he would have gone up the line as far as that. We have been unable 
to secure the attendance of Corporal Burdett as a witness. He it 
was whose chief claim to glory lies in the fact that he was the man 
who awoke Captain Macklin. 

Private Hairston, this young soldier on post No. 3. testified before 
the court that he rapped on three separate occasions on the door of 
No. 12 prior to the time when Corporal Burdett came around and 
finally succeeded in awakening Captain Macklin. Private Hairston's 
story is not consistent in all points, but I think that beyond a 
shadow of a doubt he went there to the building — to the double set 
of quarters, at an}^ rate — occupied by Captain Macklin. By Cap- 
tain Macklin's own testimony, he was awakened about five minutes 
to 1 by hearing some one at the front door ; he got up and listened, 
the knock was not repeated, and he heard no call ; he went over and 
looked at his clock, found it was 5 minutes to 1, then concluded 
he was dreaming, and went back to bed. That could not have been 
Corporal Madison; Corporal Madison Avent over there at least 
half an hour liefore that and immediately returned, rejDorting to 
his commanding officer. Major Penrose, who sent him off on an 
errand to the far end of the post — to the artillery and cavalry post. 
Upon his return, which was about 1.15 o'clock a. m. — about the 
same time that Captain Macklin finally reported to the commanding 
officer, he, Corj)oral Madison, reported to Lieutenant Grier what he 
had seen and Avhat efforts he had made to find the officer of the day. 

It could not haA^e been Sergeant Taliaferro, for. Sergeant Tal- 
iaferro's call Avas also made before the shooting Avas entirely oA^er. 

It could not have been Private Rogers, for Corporal Wheeler's 
testimony shows that PriA^ate Rogers Avas sent by the sergeant of 
the guard ver}' soon after the first call to arms Avas sounded, or about 



245 

that time, and that he leturned while the shooting was still "roin^ on 
and reported that he had been to the house of Captain Macklin. 

So this knock which Captain Macklin heard, and which was not 
inspired by his dreams, must have been made by Private Hairston. 

Before Cajjtain Macklin finally ap|)eared. not oidy had the entire 
garrison been aroused, with the exception of the ofiicer of the day, 
but a line of defense had been formed alono- the wall exlendin<r al()n<j^ 
the <>;arrison road. Everyone thouaht durni<>- the shoot in<r, and until 
a lon<>: time thereafter, that the <jarrison had been fired u|)on. Every- 
one was there, except the oflicer of the day. Captain Macklin's 
testimony shoAved that he replied to the knock at his front door at 
12.55 by calling out "All right," which agrees with Private Hair- 
ston's story. He, Captain Macklin, was officer of the day at that time, 
responsible under the commanding ofiicer for the safety of the garri- 
son. The conditions ^vere, by his oAvn testimony, so far as the neces- 
sity for sending out patrols and rounding up the men were concerned, 
unusual — and yet he never made any attempt to find out whether 
this knock which awakened him at 12.55 was a gemiine knock at his 
door or merely the result of his dreams. Why did he not at least 
go to a window and call out and find out? Knowing the conditions 
at the time it seems as though for an officer of the day to be called 
during the night would not be a surprising thing. 

I de^>^ire now, in conclusion, to call the attention of the court to 
the charge and specification in the form in Avhich it was finally 
referred to me for trial : "' Charge: ' Neglect of dnty, to the prejudice 
of good order and military discipline, in violation of the Sixty- 
second Article of War.' 

" Specification : In that Capt. E. A. Macklin, Twenty-fifth In- 
fantry, having been regidarly detailed as officer of the day and having 
regularly entered upon that duty on August 13, 1906, did neglect to 
perform the duties incumbent upon an officer of the day in case of 
alarm, retiring to his quarters from which it was found impossible 
to arouse him or bring him forth during the continuance of a con- 
siderable amount of small-arms fire and the alarms sounded in conse- 
(fiience thereof. 

" This at Fort Brown, Tex., August 13-1-1, 1906.;' 

I wish to beg the court's consideration for a brief discussion of the 
specification in this case, taking it clause by clause. 

That Capt. Edgar A. Macklin, Twenty-fifth Infantry, was " regu- 
larly detailed as officer of the day,'' and that he " duly entered upon 
that duty on August 13, 190G," is admitted on all sides. 

That he failed to " perform the duties incumbent upon an officer 
of the day in case of alarm " is shown by reference to paragraph 58 
of the Guard Manual already quoted in evidence, viz, "' In case of an 
alarm of any kind, the officer of the day will at once take such steps 
as may be necessary to insure the safety of public property and pre- 
serve order in the conmiand, disposing his guard so as best to accom- 
plish this result." As to whether he neglected to perform this duty, 
and whether it was failure or negligence is a question for the court to 
determine. 

That he retired to his quarters there is no doubt. That it Avas 
'' found impossible to arouse him or bring him forth " has been 
shown by competent testimony. That during this time a " consider- 

1G43— 07 M 17 



246 

able amount of small-arms fire " was going on at or in the vicinity of 
Fort Brown, Tex., can not be denied. That the alarm was " sounded 
in consequence thereof " is equally indisputable. 

That these occurrences took place " at Fort Brown, Tex., on August 
13-14, 1906," there is no doubt. 

That the charge under which the specification is laid is the proper 
one for such specification is not to be denied. 

We have now considered separately each clause of the specification, 
and the prosecution claims that every allegation contained therein has 
been proven by competent evidence. It is for the court to determine 
whether Captain Macklin's failure to turn out when the alarm was 
given was primarily due to not making arangements to be promptly 
called in case of alarm, or Avas due to lack of appreciation of the like- 
lihood of trouble, or was due to his being so unusually tired, or being 
such a remarkable sleeper. 

I desire to read to the court, in this connection, from page 416 of 
the record, on the cross-examination of Captain Macklin: 

Q. Did the sergeant of the guard know where you slept? — A. I don't know 
whether he did or not. 

Q. Did the musician of the guard know that you slept upstairs in the second 
room, or did he just know your quarters? — A. I don't know whether he knew 
where I slept or not. 

Q. You just told him to call you for reveille? — A. Yes. 

Now, if Captain Macklin was so unusually tired that night, and 
realized that he was a very sound sleeper — the conditions were un- 
usual — it seems to me that he should have taken additional precau- 
tions to insure his being called by a messenger whose knowledge of 
Captain Macklin's apartments was beyond question. 

On page 407, under cross-examination of Captain Macklin : 

Q. Now, Major Penrose informed you of the cause of his issuing this order 
relative to cutting off the passes on the night of August the 1.3th, did he not? — 
A. Yes. 

Q. He told you that the mayor of the city and the husband of this woman 
who was alleged to have been assaulted had reported the alleged circumstance 
to him? — A. He told me that Mayor Combe and a Mr. Evans had come up and 
i-eported this alleged assault ; yes. * 

Q. Did he also tell you that the mayor of the city had advised him to keep 
his men in post that night on account of possible trouble arising on account of 
the ill feeling occasioned in the town against the soldiers because of this alleged 
assault? — A. He stated the mayor told him he thought it was advisable to keep 
the men in — in the garrison that night. 

Also on page 408, under the same examination of the accused : 

Q. So this was the first time in your experience with the Twenty-fifth Infan- 
try that you had received orders from your commanding officer to make efforts 
to bring in all men of the garrison within the limits of the post before a speci- 
fied time in the evening? — A. Yes. 

Now, it is for the court to determine whether the soundness with 
which Captain Macklin slcj^t that night Avas due solely to the fact 
that he was tired out from overwork, or whether it was in part clue to 
the fact that he had had little sleep the preceding night, or wdiether 
the bottle or two of beer he drank had any influence upon his 
slumbers. 

I read now on joages 427 and 428 of the record : 

Q. Now. you stated that you were very tired that night, I believe? — A. Yes. 
Q. Was this due entirely to your work that day or did the fact that you had 
not had very much sleep the night before have anything to do with it?— rA. That 



247 

was one reason. I went over to Matamoras the night before with Lieutenant 
Lawrason and listened to the concert, and we returned quite late. There was 
a party of tourists there from the North, and Judge Parks invited us to come 
back in a special car they had out. so we did not get to bed until quite late — • 
in fact, I think it was 2 o'clock when we arrived home. I had very little sleep; 
I had a good deal of work that day and the guard duty was very severe — you 
have to cover a good deal of ground. 

I now leave it to the court to determine whether Captain Macklin 
Avas guilty of any neglect of duty ; and if so, the degree of culpability. 
I leave the case in your hands, gentlemen. 

Before closing, I desire to thank you for the uniform patience and 
tolerance which the court has shown the judge-advocate on the many 
occasions when, possibly, he has been a little long in getting through 
with his speeches. That is all. 

The accused, his counsels, the reporter, and judge-advocate then 
withdrew, and the court was closed and finds the accused, Capt. 
E. A. Macklin, Twenty-fifth Infantry : 
Of the specification : " Not guilty." 
Of the charge: " Not guilty." 

And the court does therefore fully and honorably acquit him, Capt. 
E. A. Macklin, Twenty-fifth Infantry. 

The judge-advocate was then recalled, and the court, at 12.40 p. m., 
adjourned sine die. 

E. E. Hatch, 
Majoi\ Twenty-sixth Infantry^ President. 
Roger S. Fitch, 

First Lieutenant^ First Cavalry., Judge- Advocate. 



Headquarters Department of Texas, 

San Antonio., Tex.., May 6., 1907. 
In the foregoing case of Capt. E. A. Macklin, Twenty-fifth In- 
fantry, the proceedings, findings, and acquittal are approved. 

R. W. HOYT, 

Colonel Twenty-jlfth Infantry.^ Commanding Department. 



General Orders, ) Headquarters Department of Texas, 

No. 34. j" San Antonio, Tex., May 6, 1907. 

Before a general court-martial which convened at these headquar- 
ters pursuant to Special Orders, No. 13, Headquarters Department of 
Texas, January 16, 1907, and of which Maj. Everard E. Hatch, 
Twenty-sixth Infantry, was president, and First Lieut. Roger S. 
Fitch, First Cavalrv, was judge-advocate, was arraigned and tried: 

Capt. E. A. Macklin, Twenty-fifth U. S. Infantry. 

Cpiarge. — " Neglect of duty, to the prejudice of good order and 
militarv discipline, in violation of the sixty-second article of war." 

Specification.—" In that Capt. E. A. Macklin, Twenty-fifth Infan- 
try, having been regularly detailed as officer of the day, and having 
duly entered upon that duty on August 13. 1906, did neglect and fail 
to perform the duties enjoined upon an officer of the day in case of 



248 

alarm, retiring to his quarters from which it was found impossible 
to arouse him or bring him forth, during the continuance of a con- 
siderable amount of small-arms fire at or in the vicinity of Fort 
Brown, Tex., and the alarms sounded in consequence thereof. This 
at Fort Brown, Tex., August 13-14, 1906." 

To which charge and specification the accused pleaded " Not 
guilty." 

Findings. — " Not guilty." 

"And the court does therefore fully and honorably acquit him, 
Capt. E. A. Macklin, Twenty-fifth Infantry." 

In the foregoing case of Caj^t. E. A. Macklin, Twenty-fifth In- 
fantry, the proceedings, findings, and acquittal are approved. 

By order of Colonel Hoyt : 

C. J. Crane, 
Lieutenant-Colonel^ Adjutant-General. 

Personally appeared before me, the undersigned authority, one 
Joseph Rogers, a private of Comi^any C, Twenty-fifth Infantry, 
who, being duly sworn according to law, deposes and says as f oIIoavs : 

That he was on guard and asleep inside the guardhouse on the 
night of August 13-14, 1906, when he was awakened by the sergeant 
of the guard calling " outside guard." That he heard shooting and 
could see the flash of guns in rear of B Company's quarters on the 
outside of the wall after he got outside of the guardhouse. That he 
then went and wakened the officer of the day, as he was ordered to do 
this by the sergeant of the guard. 

That he heard about twenty-five shots fired, more or less. That he 
knows nothing more about the shooting, and has no information that 
would lead him to suspect any particular person or persons of being^ 
concerned in this shooting. 

And further the deponent saith not. 

Joseph Rogers, 
Company C, T id enty --fifth Infantry, 

Sworn to and subscribed before me at Fort Reno, Okla., this 12th 
day of September, 1906. 

Samuel P. Lyon, 

Captain^ Tioenty-fiftJi Infantry^ Summary Court. 

A true copy. 

Roger S. Fitch, 
First Lieutenant .f First Cavalry ^^ 
Judge- Advocate^ General Court- Martial. 



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ExiiiiiiT X. 

Fionr /i.'ini, second stori/, (Jiitirlrrs 11 (I'/id IJ, Fort llrmru, Tr.r. Leltrrn iiidlrtiti' doors; 
iiiilidicrs hidiriilr iri)idiiirs. Sr(dr: C ft. =i ///. 





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Floor jilou. first sf.orii. Quarterly 9 <mi<I 10, Fort Brou'v, Tex. Lrtlrrx indlratt' iJorm 
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KximuT Z. 

Fiuvr jihni, Kcrrnid storij, Quarterly 9 ami 10, Fort Broivn, Tex. Lftlcrs hulirttir doorx; 
unmhers indicate iri^idoirx. Sc<de: f! ft. = / in. 



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